Ved Prakash vs Addl. District Magistrate and Others

Ashok Bhushan, J.—Heard Shri Sharad Madhyan, learned Counsel for the Petitioner and the learned Standing Counsel. No notice is being issued to the Respondent Nos. 2 to 9 in view of the order which is being passed. However, liberty is reserved for Respondent Nos. 2 to 9 to make an application for variation or modification of the order if they feel so aggrieved.

By this writ petition, Petitioner has prayed for a mandamus directing the Respondent No. 1 to refer the application of the Petitioner u/s 30 of the Land Acquisition Act, 1894 (hereinafter called the "Act, 1894") to the District Judge for adjudication and till the matter is finally decided, compensation may not be disbursed to anyone.

Brief facts giving rise to the writ petition are: Ganga Ram, the father of the Petitioner and the predecessor in interest of Respondent Nos. 4 to 9 along with Mangat, Jai Bhagwan and Devi Ram was cobhumidhar of Khasra No. 196, 198, 266, 267, 268, 269, 349, 350, 351, 353 total area 13-10-0. Land acquisition proceedings were undertaken in which the plots mentioned above were acquired and award u/s 11 of the Act, 1894, was prepared showing Ganga Ram, Mangat, Jai Bhagwan and Devi Ram, sons of Murli as persons entitled to receive the compensation. Reference u/s 18 of the Act, 1894 was made on which LAR No. 175/1979 was registered. The District Judge, Ghaziabad passed an order on 27/2/1986 and 24/3/1986, enhancing the amount of compensation. Against the Judgment of the order of the District Judge, First Appeal No. 778/1986, Mangat and Ors. v. State of U.P. and Ors. was filed which appeal has been decided by this Court vide judgment and order dated 22/3/2010, enhancing the amount of compensation. Ganga Ram, the father of the Petitioner died on 02/1/2006. Petitioner claims that Ganga Ram had executed a will on 28/10/1998. Petitioner made an application before the Additional District Magistrate, Land Acquisition on 23/12/2010, praying for making a reference to the District Judge u/s 30 of the Act, 1894 for apportionment of 1/12th share of compensation in favour of the Petitioner. Petitioner has filed this writ petition stating that the Respondent No. 1 is not referring the dispute to the District Judge, hence a writ of mandamus be issued directing the Respondent No. 1 to make reference u/s 30 of the Act, 1894.

Shri Sharad Madhyan, learned Counsel appearing for the Petitioner submits that the application can be filed u/s 30 of the Act, for reference by any of the claimants, and there is no limitation for filing an application u/s 30 of the Act. He submits that the right accrued to the Petitioner to claim apportionment of compensation after the death of Ganga Ram and the application which has been made needs to be referred u/s 30 of the Act, 1894.

Shri Sharad Madhyan, learned counsel appearing for the Petitioner has placed reliance on the judgment of the Apex Court in Steel Authority of India Ltd. Vs. S.U.T.N.I Sangam and Others, Dr. G.H. Grant Vs. State of Bihar, Grant v. State of Bihar; AIR 1973 Patna 146 State of Bihar v. Smt. Banarasi Devi and Ors. AIR 1981 Gau 1972 Arulmighu Lakshminarasimhaswamy Temple Singirigudi Vs. Union of India (UOI) and Others, Arulmighu Lakshminarasimhaswamy Temple Singirigudi v. Union of India and Ors. and Division Bench judgment of this Court in 2009 (5) ADJ 721 Prem Raj Singh v. State of U.P. and Ors.

Learned Standing Counsel appearing for the Respondents submits that even though there is no limitation for making reference u/s 30 of the Act, 1894, but to make reference or not to make reference u/s 30 of the Act is in the discretion of the Collector and the dispute which has arisen in the present case is much subsequent to the award regarding the heirs of Ganga Ram inter-se is not the matter which needs to be referred u/s 30 of the Act. Learned Standing Counsel appearing for the Respondents submits that no mandamus can be issued in the facts of the present case.

We have considered the submission of the learned Counsel for the parties and have perused the record.

The two main issues which have arisen in this writ petition to be considered by this Court are firstly, as to whether the application of the Petitioner dated 23/12/2010 filed u/s 30 of the Act, before the Special Land Acquisition Officer is maintainable or not and secondly, as to whether the Collector is bound to make a reference u/s 30 of the Act in the facts and circumstances of the present case.

Before we proceed to answer the above two issues, it is necessary to have a look on the scheme of the Act, 1894 regarding reference. Section 11 of the Act, 1894 provides for inquiry and award by Collector. Section 11(1) is as follows:

11(1).Enquiry and award by Collector:-[(1)]On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objection (if any) which any person interested has stated pursuant to a notice given u/s 9 to the measurements made u/s 8, and into the value of the land [ at the date of the publication of the notification u/s 4, Sub-section (1)], and into the respective interests 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.]

Section 12 of the Act, 1894 provides as to when the award of the Collector shall be final.

Section 18 of the Act, 1894 provides for reference to Court. Section 18 of the Act, 1894 is quoted 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.

(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 u/s 12, Sub-section (2), or within six months from the date of the Collector''s award, whichever period shall first expire.

Section 18 Sub-section (1) of the Act, 1894 contemplates reference also with regard to the question as to the person to whom the compensation is payable or the apportionment of the compensation among the person interested. Sub-section 2 of Section 18 of the Act, provides for a period of limitation under which reference u/s 18 is to be made. Present is not a case of reference u/s 18, of the Act, since reference u/s 18 was already made which has been decided by the Court, against which an appeal has also been decided. Reference in the present case is sought u/s 30 of the Act, 1894. Section 30 of the Act is quoted below:

30.Dispute as to apportionment:- When the amount of compensation has been settled u/s 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.

A plain reading of Section 30 of the Act, indicates that Section 30 empowers the Collector to refer any dispute to the decision of the Court as to the apportionment of the compensation or any part thereof, or as to the persons to whom thereof is payable. Section 30 of the Act, does not provide for any period under which a reference has to be made. Whether recourse to Section 30 can be taken before the award is made or even subsequent to the award, and as to under which period reference u/s 30 of the Act can be claimed, has come up for consideration before the Apex Court and this Court in may decisions. The Apex Court in Dr. G.H. Grants case (supra) has elaborately considered Section 30 of the Act, 1894.

In the aforesaid case, the land was acquired and award was made on 25/3/1952. Award was made in favour of the Appellant Dr. Grant and some other persons. An application was made by D r. Grant on 05/5/1952 for making a reference u/s 18 of the Act. In accordance with the provisions of Bihar Land Reforms Act, 30 of 1950 the Dumka Estate vested in the State of Bihar on 22/5/1952. State of Bihar made an application before the Collector praying that compensation is now payable to the State and question regarding right to payment may be referred to the Court u/s 30 of the Act. The Collector made a reference. The District Judge by his order dated 09/4/1954 held that the State of Bihar had no interest in the property notified for acquisition when the award was filed before the Collector, u/s 12 of the Act, the State could not have laid any claim to the compensation money awarded. Against the order of the District Judge, three appeals were preferred by the State of Bihar bearing nos.401/1953, 297/1954 and 298/1954 before the Patna High. The High Court held that since the title of Dr. Grant in the land acquired stood statutorily vested in the State by virtue of the notification issued under the Bihar Land Reforms Act, he was not entitled to receive the compensation money. Against the judgment of the High Court, three appeals were filed and one of the question which arose was as to whether the Collector had an authority to refer the matter u/s 30 of the Act after he had apportioned the amount u/s 11(2) of the Act. In the aforesaid context, the Apex Court had occasion to consider Section 18 as well as Section 30. Paragraphs 13, 14, 15, 16, 17, 18 and 19 are relevant which are quoted below:

There are two provisions Sections 18(1) and 30 which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable. By Sub-section (1) of Section 18 the Collector is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed by Sub-section (2) of that Section of a person interested who has not accepted the award. Section 30 authorises the Collector to refer to the Court after compensation is settled u/s 11 any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under Sub-section (2) of Section 12, must, if he does not accept the award, apply to the Collector within the time prescribed u/s 18(2) to refer the matter to the Court. But a person who has not appeared in the acquisition proceeding before the Collector may, if he is not served with notice of the filing, raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference u/s 30, for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. Whereas u/s 18 an application made to the Collector must be made within the period prescribed by Sub-section (2) Clause (b), there is no such period prescribed u/s 30. Again u/s 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is u/s 30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.

We are unable to agree with the view expressed by the Mysore High Court in Boregowda and Anr. v. Subbaramiah and Ors. AIR 1959 Mys 265 that if the Collector has made apportionment of the compensation money by his award his power to refer a dispute u/s 30 cannot be exercised. Clause (iii) of Section 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land: he has� no discretion in the matter. Exercise of the power u/s 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may, but is not bound to exercise that power. It is however not predicated of the exercise of that power that the Collector has not apportioned the compensation money by his award. We are also unable to agree with the Mysore High Court that the power u/s 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by Section 18(2) of the Land Acquisition Act. In our judgment the powers exercisable by the Collector u/s 18(1) and u/s 30 are distinct and may be invoked in contingencies which do not overlap.

By virtue of the notification issued under the Bihar Land Reforms Act the right of Dr. Grant vested in the State of Bihar. On March 25, 1952 when the Collector made an award u/s 11, the only persons interested in the award were Dr. Grant and the members of the village community, but the title of Dr. Grant in the land notified for acquisition stood, by operation of the Bihar Land Reforms Act, transferred as from May 22, 1952 to the State of Bihar. A dispute then arose between the State Government and Dr. Grant �as to the persons whom� compensation was payable. The State had no right to the compensation payable for the land under a title existing before the date of the award of the Collector, and no application for reference could be made by the State, as a person interested within the meaning of Section 18(1). The title of the State to receive compensation arose only when in consequence of the notification u/s 3 of the Bihar Land Reforms Act, the title of D r. Grant to the Estate was divested.

An award by the Collector is strictly speaking an offer made to the person interested in the land notified for acquisition: the latter may accept the offer, but is not bound to accept it. He may ask for a reference to the Court for adjudication of his claim for adequate compensation. The person interested may even accept the compensation under protest as to the sufficiency of the amount and ask for a reference. It is also open to the Government, even after the award is made, but before possession is taken, to withdraw from acquisition of any land in exercise of the powers conferred by Section 48 of the Land Acquisition Act. It is, therefore, not the award of the Collector which is the source of the right to compensation; the award quantifies the offer of the appropriate Government, which is made because the Government has taken over, or intends to take the land of the owner under the authority conferred by the Land Acquisition Act. In Sarju Prasad Saha Vs. The State of U.P. and Others, it was observed by this Court in considering the scheme of the Act that the right of the owner of the land is extinguished when Government takes possession of the land after an award of compensation is made. This is also supported by the scheme of the Act. Interest is made payable u/s 28 on the additional amount of compensation awarded by the Court from the date on which the Collector had taken possession. Similarly u/s 34 interest is made payable on the compensation from the date on which the possession is taken, if the same be not paid or deposited on or before taking possession of the land.

The right of the State of Bihar arose on May 22, 1952 when the title to the land vested in it by virtue of the notification issued under the Bihar Land Reforms Act. There is nothing in the Land Acquisition Act which prohibits the Collector from making a reference u/s 30 for determination of the title of the person who has since the date of the award acquired a right to the compensation. If after a reference is made to the Court, the person interested dies and his title devolves upon another person, because of inheritance, succession, insolvency, forfeiture, compulsory winding up or other form of statutory transfer, it would be open to the party upon whom the title has devolved to prosecute the claim which the person from whom the title has devolved could have prosecuted. In Promotha Nath Mitra v. Rakhal Das by the Petitioner No. 1 Addy 11 Cal LJ 420 it was held that a reference made by the Collector u/s 30 of the Land Acquisition Act at the instance of a proprietor of land may be prosecuted by the purchaser of his rights after the award at a revenue auction. If the right to prosecute a reference by a person on whom the title of the person interested has devolved be granted, there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award.

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 Section 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.

It was strongly pressed that u/s 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and therefore the only persons who can raise a dispute u/s 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of Section 30. The Collector is not authorised 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 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 of its liability to pay 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 suit.

In view of the proposition as laid down by the Apex Court in the aforesaid case, it is clear that there is no limitation for making an application u/s 30 of the Act, and further if any right is acquired subsequent to award also a reference can be made. However, the important distinction under Sections 18 and 30 of the Act, is that u/s 18 the Collector is bound to make a reference on a petition filed by person interested, but the Collector u/s 30, of the Act is not bound to make a reference and he may relegate a person raising dispute as to the apportionment to adjudicate the dispute in a suit. It is useful to reproduce the relevant observation in this context in paragraph 13 which is quoted below:

Again u/s 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is u/s 30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.

The Division Bench judgment of the Patna High Court in the State of Bihar v. Smt. Banarasi Devi (supra) has also laid down that there is no period prescribed for reference u/s 30 of the Act. The judgment of the Guwahati High Court in Mrs. Ka Kriksibon Kharkongor (supra) had also occasion to consider Sections 18 and 30 of the Act. In the said case, the Guwahati High Court also held that the Collector u/s 30 of the Act, 1894 has the judicial discretion to refer or not to refer the dispute. Following was laid down in paragraph 13 which is quoted below:

The exercise of power u/s 30 to refer the dispute is discretionary, the Collector may, but is not bound to, exercise that power. The Supreme Court also did not agree that the power u/s 30 has to be exercised on a motion within the period prescribed by Section 18(2) of the Act and ruled that the powers exercisable by the Collector u/s 18(1) and Section 30 are distinct and may be invoked in contingencies which do not over lap. It has, therefore, to be held that the Collector erred in rejecting the applications dated 12-9-1977 and 30-11-1977 u/s 30 of the Act as barred by limitation. Mr. Medhi''s contention that the Petitioner is not a person interested has also to be rejected being contrary to the principles of natural justice, equity and good conscience and in view of the definition of ''person interested'' in Section 3(b) of the Act to include all persons claiming an interest in compensation to be made on account of acquisition under the Act.

A Division Bench judgment of this Court in Prem Raj Singh''s case (supra) has also considered Section 30 of the Act, 1894. Following was laid down by the Division Bench in paragraphs 5 and 6 which are quoted below:

The power to refer the dispute u/s 30 of the Act has been held to be discretionary. See Dr. G.H. Grant Vs. State of Bihar, Govindu Venkata Reddy Vs. K. Krishna Rao and Another, Vishnu Pratap Singh v. State of U.P. 1993 LAC 484.

It has also been held in the aforesaid decisions that in case the dispute is not referred to u/s 30 of the Act then it is open to the aggrieved person to file a suit for adjudication of the rights. This is also import of the third proviso to Section 31(2) of the Act.

In view of the foregoing discussion, it is clear that although an application for reference u/s 30 of the Act can be made by a person who had not appeared before the Collector at the time of award u/s 11 of the Act, who had acquired right subsequent to the award and there is no limitation for filing an application, thus the application filed by the Petitioner cannot be said to be not maintainable. However, the proposition as noticed above is well settled that the Collector has discretion with regard to the application seeking reference u/s 30 of the Act. The Collector in appropriate cases may make a reference or in appropriate cases may decline the reference leaving it open to the persons applying for reference to get his rights settled by civil Court as has been laid down by the Apex Court in Dr. Grant''s case (supra).

In view of the above, we are of the view that the application filed by the Petitioner dated 23/12/2010, needs to be considered by the Respondent No. 1 and appropriate decision be taken as to whether the application can be referred u/s 30 of the Act, or the Petitioner be asked to get his right settled by the competent civil court. The Collector, who has discretion to take a decision in that regard has to decide the application in accordance with law.

In the result, the writ petition is disposed of directing the Respondent No. 1 to consider and take appropriate decision on the application of the Petitioner dated 23/12/2010, expeditiously, preferably within a period of three months from the date of filing a certified copy of this order before him after giving opportunity to the private Respondents No. 2 to 9 also.

With the aforesaid direction, writ petition is disposed of accordingly.