Manglo and Another vs The State of H.P. and Others

V.K. Mehrotra, J.—In the year 1971 some land situates in village Dharamkot, Tehsil Paonta Sahib, District Sirmur was utilized by tile H.P. Public Works Department for constructing Bardrinagar-Jamniwala-Majra road. The land had not been acquired. Some of the persons interested therein approached this Court through petitions under Article 226 of the Constitution. The Court directed the State Government to make some payments by way of interim compensation and also to take proceedings for acquisition of land in accordance with law. Thereafter, land acquisition proceedings were initiated by issuance of a Notification u/s 4 of the Land Acquisition Act (for brief, "the Act") on June 21, 1986. An Award was made on July 16,1987.

The two Petitioners in the present writ petition made an application before the Collector on September 1, 1988. In if they said that they were entitled to be paid the compensation amount for an area of three bus was of land which had been erroneously paid to Respondents No. 3 and 4- in the present petition. They prayed that a reference be made to the Civil Court for apportionment of the amount of compensation u/s 30 of the Act. This application .was accompanied by Anr. application u/s 5 of the Limitation Act. The prayer therein was that the delay in seeking reference u/s 30 be condoned. Both these applications were dated August 28, 1988. The Collector rejected the application for reference by an order dated September 16, 1988.

A copy of the order of the Collector dated September 16, 1988, is Annexure P 4 to the writ petition. What has been said, in this order is that the application had been received by post from the Petitioner on September 1, 1988 and was being returned as received with the remarks that":

the Award in this case was announced by the Land Acquisition Collector, 3olan on 16-7-1987 and the payment of the Award amount also disbursed to the right holders as per latest entries in the revenue record on 31-7-1987. Since there is no question of apportionment at this stage hence no further action on this application can be taken by this "Court office at this belated stage.

The Petitioners then approached this Court by instituting the present writ petition in which, apart from the State of Himachal Pradesh, Land Acquisition Collector, Solan Avtar. Singh and Soddi, to whom the amount of compensation, according to the Petitioners was erroneously paid in respect of three bis was of land, have been imp leaded as parties.

On notice being issued to the Respondents, replies have been filed on behalf of the first two Respondents as well as Respondents No. 3 and 4.

A perusal of the order passed by the Collector makes it clear beyond doubt that the Collector had not given any opportunity of hearing to the Petitioners before passing the same. The order reveals that the Collector was impressed by two facts. First, that the Award is having been made and the amount of compensation having been disbursed in the year 1987. There was no question of any apportionment of the amount of compensation. Second, that, the application for seeking a reference for apportionment was belated.

The order of the nature passed by the Collector is, undoubtedly, quasi judicial in character. It could not have been passed by him without hearing the Petitioners. In failing, to do, he has failed to conform to the requirements of justice.

The question whether a claimant seeking apportionment of the amount of compensation should be asked to establish his title in an appropriate civil of the matter should be gone into on a reference u/s 30 of the Act, is to be decided in his discretion by the Collector It is open to a person, who is setting up a claim to pay part amount of compensation on the basis that he had title to the acquired property, to establish his right in civil court or ask for its determination upon a reference u/s 30 of the Act This legal position is hardly in doubt. The Supreme Court said so in Dr. G.H. Grant- v. The states of Bihar of the Supreme court (in paragraph19) are trite :

.....The (Collector is not authorized to decide finally the Conflicting right of the persons interested in the amount 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 the to apportion the amount of compensation between the persons known or believed to be interested in the it and, of whom or of whose claims, the 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 u/s 18 or u/s 30 or in a separate suit. Payment of Compensation therefore, u/s 31 to the person declared by the award to be entitled thereto discharges the State or its liability to any compensation (Subject to any modification by the Court leaving it open to the claimant to compensation to agitate his right in a reference u/s 30,or by a separate ant.

The legal position was, obviously not clear to the Collector as is evident from the impugned order. In case the Collector had heard the applicants would have been to the applicants to, persuade him that in the circumstances of the present case, they could, ask for determination of the question of the title to the acquired property, in so far AS it related to their claim of apportionment upon a reference being made u/s 30 of the Act. They could also have persuaded him to take the dew that circumstances of the case did not justify a direction that they should establish their rights in a civil court.

What has been urged with some emphasis before its by the teamed counsel appearing for the third and the fourth Respondents is that the circumstances of the present case are Such in which this Court should not interfere with the impugned order and leave the present Petitioners to seek remedy before a civil court, if they are still entitled to do so. Shri A.K. God has urged en behalf of these Respondents, that they were owners of the land in question. In other word their claim is they that they had purchased even these three bis was of land from Petitioner No. 2 mud fee amount of compensation in respect thereof was rightly paid to the Respondents. Also, that the Petitioners slept over their rights for considerable time and approached the Collector with an application for a reference being made u/s 30 of the Act nearly is year after the date of disbursement of the amount of compensation to the Respondents. They were thus guilty of laches. Learned Advocate General, appearing on behalf of the first two Respondents, has taken the stand that the order of the Collector was one passed in" discretion by which he refused to make a reference u/s 30 of the Act. This Court should be loathe to interfere with the discretion exercised by him a petition under Article 226 of the constitution

From the relevant part of the order of the Collector, extracted by us earlier, it is dear that the Collector was laboring under a misconception that the question of apportionment could not be agitated after an Award had been made and the amount of compensation had been paid by the Collector. to Collector, as is clear from the order, has not exercised his discretion not to make a reference u/s 30 of the Act and to leave the Petitioners to agitate their claim in appropriate civil court, it appears to us that the learned Collector was not aware of the correct legal position that the question of apportionment was open even after an Award had been made and the amount of compensation paid to some persons.

The submission of Sh. Goel that the third and fourth Respondents were the owners of three bis was of land and, as such, this Court should not direct that the matter of making a reference u/s 30 of the Act or otherwise should be gone into by the Collector begs the real question. The parties are, according to the stand taken in the present writ petition, seriously at issue whether the second Petitioner had sold three bis was of land to the third and the fourth Respondents or not. It is a question which can be decided both u/s 30 of the Act as well'' as in appropriate civil proceedings. The Collector has, after taking into consideration the circumstances of the case, yet to come to the conclusion whether he will like to make a reference u/s 30, wherein this question can also be gone into, or ask the Petitioners to establish their right in appropriate civil court. Admittedly, the Collector has not applied has mind to this aspect of the matter.

Since we are of opinion that the matter should be gone into by the Collector himself in the first instance, after notice not only to the Petitioners but also to the Respondents in the writ petition, we are refraining ourselves from making any observation, which my prejudice the case of either party on inherits.

The order dated September 16, 1988, forming part of Annexure P 4, passed by the Collector is quashed. He is directed to go into the matter afresh, after notice to the parties, and then decide whether he would make a reference u/s 30 of the Act or leave the parties to agitate their rights before the appropriate civil-court.

We are supported in the view taken by us by a decision of the. Gauhati High Court in Mrs. Ka Kriksibon Kharkongor and Another Vs. The Deputy Commissioner and Collector, Khasi Hills and Another,

Since the original applications made by the Petitioners to the Collector were returned to the Petitioners in original, together with an endorsement in the form of the order quashed by us, the Petitioners would be at liberty to represent the same applications before the Collector within four weeks from today. The Collector would proceed to dispose of the applications in accordance with law, after notice to the parties,

In the circumstances of the case we leave the parties to bear their own costs in this Court.

A copy of the order be given to the counsel for the parties within a week on payment of usual charges.