Allahabad High Court
Rajendra Singh And Another vs District Magistrate Rae Bareli And Ors. on 5 September, 2019
Bench: Pankaj Kumar Jaiswal, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 1 Case :- LAND ACQUISITION No. - 174 of 2015 Petitioner :- Rajendra Singh And Another Respondent :- District Magistrate Rae Bareli And Ors. Counsel for Petitioner :- Apoorva Tewari Counsel for Respondent :- C.S.C.,Anupam Mehrotra,Gopesh Tripathi Alongwith Case :- LAND ACQUISITION No. - 175 of 2015 Petitioner :- Smt. Pushpa Devi Alias Pappo Devi Respondent :- District Magistrate Raebareli And Ors. Counsel for Petitioner :- Prakhar Mishra,Arvind Kumar Jauhari Counsel for Respondent :- C.S.C.,Anupam Mehrotra,Gopesh Tripathi Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Jaspreet Singh,J.
1. Both these writ petitions assail the order dated 28.09.2015 passed by the opposite party no. 2 and since common questions of facts and law are involved. Hence both the petitions have been heard together and are being decided by this common judgment.
2. W.P. No. 174 (LA) of 2015 has been filed by Sri Rajendra Singh and Anand Singh whereas W.P. No. 175 (LA) of 2015 has been filed by Smt. Pushpa Devi @ Pappo Devi who is the mother of Rajendra Singh and Anand Singh. Primarily, the grounds raised in both the petitions are similar, however, in so far as the claim is concerned, there is a divergence in the stand of the petitioners of W.P. No. 174 (LA) of 2015 and petitioners of W.P. No. 175 (LA) of 2015.
3. To put the controversy before this Court in a proper perspective, certain facts giving rise to the above petitions are being noticed hereinafter:-
4. That both the present writ petitions assail the order passed by the Special Land Acquisition Officer whereby he has rejected the claim of the petitioners in both the writ petitions for referring the matter for adjudication in terms of Section 18 of the Land Acquisition Act, 1894, hereinafter referred to as "Old Act of 1894" which is equivalent to Section 64 of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, hereinafter referred to as "New Act of 2013. For the sake of convenience the facts, dates and events have been noticed from the W.P. No. 174 (LA) of 2015.
5. The land in question bearing Khata No. 69 and 70 situate in Village Dalmau, District Raebareily which is the subject matter of acquisition for setting up the Battalion for Indo Tibetan Border Police, for which a notification under Section 4 of the Old Act of 1894 was issued on 12.06.2013. Subsequently, the declaration under Section 6 of the Old Act of 1894 was issued on 30.12.2013.
6. The aforesaid land admittedly belonged to Late Raja Uday Raj Singh and his name was duly recorded in the revenue records as bhumidhar with transferable rights.
7. It is the case of the petitioners that Raja Uday Raj Singh had two wives namely Smt. Laxmi Kunwar and Smt. Pushpa Devi @ Pappo Devi (petitioner of W.P. No. 175 (LA) of 2015). Sri Uday Raj Singh had one son from his first wife Smt. Laxmi Kunwar namely Rakesh Pratap Singh who is the respondent no. 3 in the above writ petitions and he had two sons from the second wife Smt. Pushpa Devi @ Pappo Devi namely Rajendra Singh and Anand Singh (who are the petitioners in W.P. No. 174 (LA) of 2015).
8. Sri Uday Raj Singh expired on 13.05.1976. It is the case of the petitioners that at that point of time the petitioners of W.P. No. 174 (LA) of 2015 were only 14 and 12 years of age respectively and though they along with Smt. Pushpa Devi @ Pappo Devi were the successor, however, the respondent no. 3 by misleading the revenue authorities only got his name mutated as the sole bhumidhar with transferrable rights in respect of Khata No. 69 and 70 which admeasures 317 Bighas 18 Biswas and 3 Biswansi. This mutation order dated 27.07.1978 was not known to the petitioners and it is only on 27.04.2010, from a newspaper report published in Dainik Jagran, Raebarely which indicated that some land of Shivgarh estate situate in Village, Pargana and Tehsil Dalmau, District Raebarely was made the subject matter of some dispute then the petitioners inspected the revenue records and upon obtaining the certified copies of the Khatauni as well as the Khewat, for the first time they became aware that by means of the ex-parte order dated 27.07.1978, respondent no. 3 had got his name mutated in place of late Raja Uday Raj Singh.
9. The petitioners thereafter assailed the order dated 27.07.1978 by moving an application for recall specifically stating therein that they were the co-tenure holders along with the respondent no. 3 and had equal rights over the aforesaid property and that the name of the petitioners be also mutated in the revenue records. The aforesaid application was moved on 12.07.2010. At this juncture, it would be pertinent to notice that as far as Smt. Pushpa @ Pappo Devi is concerned while she also assailed the mutation order dated 27.07.1978, however, her ground of challenge was that Late Raja Uday Raj Singh had executed his last registered Will dated 15.04.1969 and in furtherance of the aforesaid Will, upon the death of Late Raja Uday Raj Singh on 13.05.1976, the petitioner of W.P. No. 175 (LA) of 2015 became the exclusive owner of the said estate left behind by Late Raja Uday Raj Singh.
10. It has also been pleaded on record that late Raja Uday Raj Singh had instituted a suit against his first wife namely Smt. Laxmi Kunwar and his son Rakesh Pratap Singh (respondent no. 3) which was registered as R.S. No. 15 of 1968. The said suit was filed in the Court of Civil Judge, Raebareily. During the pendency of the aforesaid suit, since the Late Raja Uday Raj Singh had expired, hence, in the aforesaid suit Smt. Pushpa Devi @ Pappo Devi was permitted to be substituted in his place after due consideration of his last Will dated 15.04.1969. It has been stated that since upon substitution in the Civil Suit, the respondent no. 3 herein was aware of the fact that Late Raja Uday Raj Singh had executed a registered Will in favour of Smt. Pushpa Devi, however, the same was concealed by the respondent no. 3 and had got his name mutated in the revenue records. Thus, it would be seen that as far as the two petitions are concerned, the writ petitioners of W.P. No. 174 (LA) of 2015 are claiming co-tenure ownership along with the respondent no. 3 and Smt. Pushpa Devi, whereas the writ petitioner of W.P. No. 175 (LA) of 2015 is maintaining her case as being the sole and absolute owner of the estate left behind by Late Raja Uday Raj Singh on the basis of his last registered Will dated 15.04.1969.
11. It will also be relevant to point out that a number of civil disputes and cases are pending between the petitioners and the respondent no. 3 in various Courts. It is in this backdrop of disputes and time that the notification under Section 4 and declaration under Section 6 of the old Act of 1894 was issued. The writ petitioners of both the writ petitions before the Special Land Acquisition Officer submitted their objections stating that they also had a stake in the compensation amount and it was specifically stated that in view of ongoing litigations, the respondent no. 3 alone was not the sole tenure holder whereas the writ petitioners of both the writ petition also had a right in the property and now since the said property had been acquired, accordingly they had a right in the compensation and it was further prayed that the said compensation amount may not be released in favour of the respondent no. 3.
12. During the pendency of the proceedings before the Special Land Acquisition Officer, the Old Act of 1894 was repealed and was replaced by the Act of 2013. Taking the benefit of Section 24 (1) (a) of the Act of 2013 it was prayed that since no award had been made under the Act of 2013, accordingly, the compensation is to be adjudged in accordance with the provision of the Act of 2013. The writ petitioners of both the writ petitions again made applications before the respondent no. 2 on 13.06.2014 stating that in view of the disputes between the parties the amount may not be released in favour of respondent no. 3 alone and that the petitioners also had a right and the matter be referred to the competent Court in terms of reference under Section 18 of the Old Act of 1894 (which is equivalent to Section 64 of the new Act of 2013). Similar application was made by the petitioners on 21.07.2014 and thereafter the respondent no. 2 issued notices dated 05.08.2014 requiring the petitioners to furnish evidence/documents in support of their claims. The petitioners filed their affidavits bringing on record all the facts along with their documents in support of their claim which was submitted with the respondent no. 2 along with their covering application dated 19.08.2014.
13. Since this matter was already seized with the respondent no. 2, however, before adjudicating upon the same, it passed its award dated 25.07.2015 wherein it did not indicate as to who was entitled to the compensation and to what extent.
14. That even after passing of the award, the respondent no. 2 yet again issued notice dated 17.08.2015 calling upon the petitioners to produce their evidence in support of their claim. The petitioners once again by means of their letter/application dated 26.08.2015 submitted evidence/documents in respect of their claim and sought the apportionment of the compensation and the disputed questions referred to to the Court. The respondent no. 3 also submitted his objections and disputed the claim of the writ petitioners of both the writ petitions and sought the release of compensation in his favour alone.
15. The petitioners had thereafter filed another application dated 21.09.2015 reiterating the request to refer the disputes to the Court, however, the respondent no. 2 by means of order dated 28.09.2015 rejected the application of the petitioners and adjudicating the matter itself found that there was no merit in the objections raised by the writ petitioners and held the respondent no. 3 to be entitled to the compensation and further provided that the order passed shall be subject to any order passed in any title suit by a competent Court against the respondent no. 3.
16. It is this order dated 28.09.2015 which is the subject matter of challenge in the above two writ petitions. Significantly, the writ petitioners of both the writ petitions had initially preferred one composite writ petition No. 146 (LA) of 2015, however, the same was withdrawn, with liberty granted by a co-ordinate Bench of this Court by means of order dated 16.10.2015 to file a fresh writ petition and subsequently these two separate writ petitions came to be filed.
17. The Court has heard at length Sri Anil Tiwari, learned Senior Advocate assisted by Sri Apoorva Tiwari for the petitioners of W.P. No. 174 (LA) of 2015 and Sri Arvind Jauhari, learned counsel for the writ petitioner of W.P. No. 175 (LA) of 2015 and Sri Anupam Mehrotra learned counsel who has appeared on behalf of respondent no. 3 in both the writ petitions.
18. The contention of learned Senior Counsel for the petitioners Sri Anil Tiwari is that the respondent no. 2 has committed a grave illegality, inasmuch as, once the matter was pending before the respondent no. 2 wherein application had been moved bringing on record the dispute in between the parties regarding the compensation and these applications were in the knowledge of the respondent no. 2 even prior to the date of passing of the award and so thereafter, however, in terms of Section 18 of the Old Act of 1894 which is equivalent to Section 64 of the New Act of 2013 it was incumbent upon the respondent no. 2 to have referred the matter to the appropriate Court / Authority for adjudication. It has been submitted that it was not at all within the domain of the respondent no. 2 to have adjudicated the rights of the parties and the respondent no. 2 has exceeded its jurisdiction vested in it in law by holding that the objections raised by the writ petitioners did not have any merit and it upheld the right of the respondent no. 3 to receive the compensation.
19. It has been elaborated by Sri Tiwari that in the proceedings under the Land Acquisition Act, the legislature has used to word ''interested person' and any person who has a right over the compensation is an interested person and has a right to approach the Special Land Acquisition Officer. Once the issue had been raised by such interested person in terms of Section 18 of the Old Act of 1894 (equivalent to Section 64 of the new Act of 2013) then it was incumbent upon the Special Land Acquisition Officer to refer the dispute for reference and it is not within his jurisdiction to adjudicate the conflicting claims of the respective parties.
20. It has been further submitted that since the respondent no. 2 has taken upon himself to adjudicate the rights which is in gross violation of the powers conferred upon the Special Land Acquisition Officer, consequently, the order being wholly without jurisdiction and nonest deserves to be set aside and a direction be issued that the Special Land Acquisition Officer may refer the matter before the appropriate authority for apportionment of the compensation in terms of the new Act of 2013.
21. The Learned Senior Counsel for the petitioners has relied upon the decisions of the Apex Court in the Case of Sharda Devi Vs. State of Bihar and Another reported in 2003 (3) SCC 128 and Ramesh B. Desai Vs. Bipin Vadilal Mehta and Others reported in 2006 (5) SCC 638 in support of his submissions.
22. The aforesaid submissions have also been adopted by Sri A.K. Jauhari, learned counsel for the petitioner in W.P. No. 175 (LA) of 2015.
23. Per contra, the learned counsel for the respondent no. 3 Sri Anupam Mehrotra has vehemently opposed the submissions of the learned counsel for the petitioner. The primary ground of challenge raised by Sri Mehrotra is that the petitioners are not entitled to maintain the above writ petitions as they have not approached the Court with clean hands and have resorted to suppression and concealment of facts. It has been submitted that large number of proceedings were pending between the parties which have been concealed by the petitioners. It has also been vehemently urged that the sole ground raised by the petitioners in their application before the Special Land Acquisition Officer was that the mutation order of 1978 was under challenge, inasmuch as, the writ petitioner had made an application for recall of order 21.07.1978 vide application dated 12.07.2010. However, it is submitted that the said application was dismissed in default by means of the order dated 25.10.2012. Subsequently, an application for recall of the said order dated 25.10.2012 was moved which was also rejected by means of the order dated 30.03.2015 and yet again the application for restoration/recall was moved. It is only by means of the order dated 21.07.2016 that the application for restoration/recall was allowed and order was set aside but it was only the subsequent order by which the restoration application was rejected was set aside and it did not restore the original applications for recall which were moved in the year 2010.
24. Thus, the submissions of Sri Mehrotra is that an incorrect impression was given by the writ petitioners and even similar facts were brought on record in the above writ petition to indicate that their application challenging the mutation was pending whereas the same already stood dismissed in default on 25.10.2012 and the said order had yet not been recalled. What was recalled was the order of dismissal of the restoration application and thus on the date when the Special Land Acquisition Officer has passed the impugned order admittedly the recall applications against the mutation order was not in existence and thus no benefit could be granted to the writ petitioners on the assumption of the pendency of the recall application dated 12.07.2010.
25. It has also been submitted by Sri Mehrotra that since the application for reference did not adhere to the ingredients as set out in Section 64 of the Act of 2013, hence it was not incumbent upon the respondent no. 2 to have made the reference. It has also been submitted that the respondent no. 2 is not a mere authority who just receives the application and without application of its mind, is required to make the reference, rather it has to apply its mind and only when it finds that the application is in accordance with the parameters set out in Section 64 and Section 65 of the new Act of 2013 only then a reference can be made. Since the applications moved by the writ petitioners did not comply with the requisite conditions, accordingly it was absolutely appropriate for the respondent no. 2 to have refused to make the reference.
26. It has also been pointed out that the writ petitioners of W.P. No. 174 (LA) of 2015 had already instituted a Regular Suit bearing No. 566 of 1999 wherein they were claiming declaration to the effect that the respondent no. 3 be declared as not being the son of Late Raja Uday Raj Singh wherein an injunction has also been prayed that the respondent no. 3 is not entitled to the property inherited by the respondent no. 3, thus, the aforesaid suit also encompasses within its fold, the land in question which is the subject matter of acquisition and hence once the issue was already seized by the Civil Court in Regular Suit No. 566 of 2019, thus the same could not be made the subject matter of reference.
27. Sri Mehrotra has also vehemently urged that the application filed by the writ petitioners seeking reference under Section 18 of the old Act was barred by the limitation as provided in sub Section (2) of Section 18 of the Act of 1894. Sri Mehrotra has relied upon the decision of the Apex Court in the case of Ramesh Chandra and Others Vs. Tanmay Developers Pvt. Ltd. reported in 2017 (13) SCC 715, Union of India and Others Vs. Major General Shri Kant Sharma and Another reported in 2015 (6) SCC 773, Mohammad Hasnuddin Vs. State of Maharashtra reported in 1979 (2) SCC 572, Shahid Zamal and Another Vs. State of U.P. and Others reported in 2018 (3) SCC 52 and M/s Prestige Lights Ltd. Vs. State Bank of India and Others reported in 2007 (8) SCC 449 in support of his submissions.
28. The Court upon hearing the learned counsel for the respective parties and on perusal of the record and their respective case laws, discerns the following questions for consideration.
(i) Whether the respondent no. 2 was obliged to refer the matter under Section 18 of the old Act or the respondent no. 2 could have decided the applications seeking reference and adjudicate the dispute by himself ?.
(ii) Whether the application seeking reference made by the writ petitioners was barred by limitation as provided in Section 18 of the old Act equivalent to Section 64 of the new Act ?.
(iii) Whether the writ petitions filed by the writ petitioners should be dismissed on the ground of non-disclosure of full and complete details regarding the pending litigations between the parties ?.
29. In order to answer the aforesaid questions which have been set out for determination, it would be relevant to notice the scheme of the land acquisition especially in light of the provisions contained under Section 18 and Section 30 of the old Act equivalent to Section 64 and Section 76 of the new Act.
30. This aspect of the matter has been extensively dealt with by the Apex Court in the Case of Sharda Devi Vs. State of Bihar and Another (Supra). The Apex Court while summarizing the difference in the reference made under Section 18 and under Section 30 of the old Act in context with locus, types of disputes which are referrable, nature of power exercised by the authority and the ground of limitation and has held as under :-
"By reference to locus Under Section 18(1) a reference can be made by the Collector only upon an application in writing having been made by (i) any person interested, (ii) who has not accepted the award, (iii) making application in writing, to the Collector, requiring a reference by the Collector to the court, (iv) for determination of any one of the four disputes (specified in the provision), and (v) stating the grounds on which objection to the award is taken. For reference under Section 30 no application in writing is required. The prayer may be made orally or in writing or the reference may be made suo motu by the Collector without anyone having invited the attention of the Collector for making the reference.
By reference to the disputes referable Under Section 18(1) there are four types of disputes which can be referred to the civil court for determination. They are disputes: (i) as to the measurement of the land, (ii) as to the amount of the compensation, (iii) as to the persons to whom the compensation is payable, or (iv) as to the apportionment of the compensation among the persons interested. Under Section 30 the only disputes which are referable are: (i) any dispute as to the apportionment of the amount of compensation or any part thereof, or (ii) a dispute as to the persons to whom the amount of compensation or any part thereof is payable. A dispute as to the measurement of the land or as to the quantum of compensation or a dispute of a nature not falling within Section 30, can neither be referred by the Collector under Section 30 of the Act nor would the civil court acquire jurisdiction to enter into and determine the same.
By reference to the nature of power Under Section 18 of the Act the Collector does not have power to withhold the reference. Once a written application has been made satisfying the requirements of Section 18, the Collector shall make a reference. The Collector has no discretion in the matter, whether the dispute has any merit or not is to be left for the determination of the court. Under Section 30 the Collector may refer such dispute to the decision of the court. The Collector has discretion in the matter. Looking to the nature of the dispute raised, the person who is raising the dispute, the delay in inviting the attention of the court, and so on -- are such illustrative factors which may enter into the consideration of the Collector while exercising the discretion. If the Collector makes the reference it may be decided by the court subject to its forming an opinion that the dispute was capable of reference and determination under Section 30 of the Act. In case the Collector refuses to make a reference under Section 30 of the Act, the person adversely affected by withholding of the reference or refusal to make the reference shall be at liberty to pursue such other remedy as may be available to him under the law such as filing a writ petition or a civil suit.
By reference to limitation Under Section 18 the written application requiring the matter to be referred by the Collector for the determination of the court shall be filed within six weeks from the date of the Collector's award if the person making it was present or represented before the Collector at the time when he made his award or within six weeks of the notice from the Collector under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire. There is no such limitation prescribed under Section 30 of the Act. The Collector may at any time, not bound by the period of limitation, exercise his power to make the reference. The expression "the person present or represented" before the Collector at the time when he made his award would include within its meaning a person who shall be deemed to be present or represented before the Collector at the time when the award is made. No one can extend the period of limitation by taking advantage of his own wrong. Though no limitation is provided for making a reference under Section 30 of the Act, needless to say, where no period of limitation for exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period; what is a reasonable period in a given case shall depend on the facts and circumstances of each case.
26. The scheme of the Act reveals that the remedy of reference under Section 18 is intended to be available only to a "person interested". A person present either personally or through a representative or on whom a notice is served under Section 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed under Section 18(2) to make a reference to the court. The basis of title on which the reference would be sought for under Section 18 would obviously be a pre-existing title by reference to the date of the award. So is Section 29, which speaks of "persons interested". Finality to the award spoken of by Section 12(1) of the Act is between the Collector on one hand and the "persons interested" on the other hand and attaches to the issues relating to (i) the true area i.e. measurement of the land, (ii) the value of the land i.e. the quantum of compensation, and (iii) apportionment of the compensation among the "persons interested". The "persons interested" would be bound by the award without regard to the fact whether they have respectively appeared before the Collector or not. The finality to the award spoken of by Section 29 is as between the "persons interested" inter se and is confined to the issue as to the correctness of the apportionment. Section 30 is not confined in its operation only to "persons interested". It would, therefore, be available for being invoked by the "persons interested" if they were neither present nor represented in the proceedings before the Collector, nor were served with notice under Section 12(2) of the Act or when they claim on the basis of a title coming into existence post-award. The definition of "persons interested" speaks of "an interest in compensation to be made". An interest coming into existence post-award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to Section 30. In any case, the dispute for which Section 30 can be invoked shall remain confined only (i) as to the apportionment of the amount of compensation or any part thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is payable. The State claiming on the basis of a pre-existing right would not be a "person interested", as already pointed out hereinabove and on account of its right being pre-existing, the State, in such a case, would not be entitled to invoke either Section 18 or Section 30 seeking determination of its alleged pre-existing right. A right accrued or devolved post-award may be determined in a reference under Section 30 depending on the Collector's discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon in any independent legal proceedings. This view is just, sound and logical as a title post-award could not have been canvassed up to the date of the award and should also not be left without remedy by denying access to Section 30. Viewed from this angle, Sections 18 and 30 would not overlap and would have fields to operate independent of each other."
31. From the perusal of the principles extracted above, it is clearly brought out that a reference under Section 18 of the old Act is only available to a person interested. A person who is either personally present before the Special Land Acquisition Officer or through a representative or to whom a notice is served subject to meeting the test of locus-standi, such a person can apply to the Collector within the time so prescribed in the aforesaid sections to make a reference.
32. Obviously the basis of title on which a reference can be sought under Section 18 , as explained by the Apex Court, would apparently be on the basis of a pre-existing title. It has also been clearly stated that the disputes which can be referred for reference under Section 18 are such disputes relating to (i) measurement of the land (ii) as to the amount of compensation (iii) as to the persons to whom the compensation is payable (iv) as to the apportionment of the compensation amongst the persons interested. Once an application is submitted to the Collector which complies with the requirements as set out in Section 18 then it is imperative for the Collector to make such a reference.
33. The Apex Court in the Case of Sharda Devi (Supra) has clearly held that the Collector does not have the power to withhold the reference nor does he has any discretion in the matter whether the dispute raised has any merit or not and the same has to be left for the determination of the Court.
34. Applying the principles as laid down by the Apex Court and considering the fact that as far as the present writ petitioners are concerned, they have been claiming title in respect of the property in question on the basis of inheritance, having succeeded to the estate of Late Raja Uday Raj Singh. Though, the acquisition notice under Section 4 was dated 12.06.2013 whereas the rights claimed by the writ petitioners accrued to them upon the death of Late Raja Uday Raj Singh who expired on 13.05.1976. Thus, in so far as the dispute of succession and inheritance is concerned, the same accrued to the parties in the year 1976 i.e. prior to the date of notification under Section 4 of the Land Acquisition Act and thus it can safely be said that as far as the rights agitated by the writ petitioners is concerned the same was a pre-existing right and is not a right which has accrued to them post the notification or making of the award.
35. From the perusal of the record, it is also clearly reflected that the dispute is in respect of who is entitled to the compensation since the respondent no. 3 claims that he is the only successor of Late Raja Uday Raj Singh, therefore, the compensation should be paid to him, alone. Whereas the writ petitioners of W.P. No. 174 (LA) of 2015 submit that they along with their mother Smt. Pushpa Devi have a right. On the other hand, Smt. Pushpa Devi who is the writ petitioner of W.P. No. 175 (LA) of 2015 claims to be the exclusive owner, having succeeded to the entire estate of Late Raja Uday Raj Singh on the basis of a registered Will dated 15.04.1969. It is also not disputed that there is a bitter litigation between the parties, inasmuch as, the respondent no. 3 has also challenged the paternity of the petitioners of W.P. No. 174 (LA) of 2015.
36. From the record it reveals that prior to the date of the passing of the award, the petitioners had already made an application before the Special Land Acquisition Officer registering their objections including the fact that they had staked their claims by means of their objections dated 13.06.2014. The record also indicates that the Special Land Acquisition Officer had even called for the documents from the writ petitioners to substantiate their case and in furtherance thereof the writ petitioners had submitted their affidavits bringing on record the documents in support of their claims. Once these claims were before the Special Land Acquisition Officer who himself had issued notices dated 05.08.2014 to the parties concerned, a copy of which has been annexed as Annexure No. 10 to the writ petition, then in the aforesaid circumstance, the Special Land Acquisition Officer ought to have considered the same while passing the award dated 25.07.2015, however, the record would indicate that while passing the award there was no discussion or even reference to the respective and conflicting claims of the parties.
37. Significantly, the respondent no. 2 again by means of his notice dated 17.08.2015 (post passing of the award) again issued notices and required the writ petitioners and the parties to submit their documents/evidence. The writ petitioners once again submitted their applications which have been brought on record, a copy of which is Annexure no. 14 and Annexure No. 15 of the writ petition. Thus, from the above, the fact which cannot be disputed is that the matter in dispute regarding the payment of compensation was alive before the respondent no. 2. It was a dispute which had been raised by the parties clearly referrable under Section 18 of the old Act equivalent to Section 64 of the new Act.
38. It is also not in dispute that the writ petitioners and the respondent no. 3, all were present before the Special Land Acquisition Officer even prior to the making of the award and had been agitating their claims. Once their claims were present with the Special Land Acquisition Officer who did not consider the same at the time of making an award and himself required the parties to appear before him in the month of August, 2015 and required the petitioners to submit their documents in respect of the respective claims which was done by the writ petitioners. Thus, under these circumstances, it was not open for the Collector to have entered into the merits of the disputes and as per the dictum of the Apex Court in the case of Sharda Devi, the Collector was obliged to refer the disputes for adjudication to the Court. It was not open for the Collector to withhold the reference nor was it open for him to entertain the same on its merit and find out whether the dispute so raised by any party had any merit or not.
39. Under these circumstances, the only inescapable conclusion that can be drawn is that the respondent no. 2 exceeded his jurisdiction by delving into the merit of the disputes while passing the impugned order dated 28.09.2015. Thus, this Court has no hesitation to hold that the respondent no. 2 did not have the jurisdiction to delve into the merits of the disputes raised by the parties and consequently the only option left with the respondent no. 2 was to have referred the dispute for adjudication to the competent Court. The first question is answered accordingly.
40. Considering the next question, whether the reference was within time, this Court without delving much into the details, notices that the objections regarding the compensation had already been made by the writ petitioners even prior to the making of the award. Admittedly, the award was made on 25.07.2015 and as far as the writ petitioners are concerned their claims for making the reference was already available on the record with the respondent no. 2. Moreover, after the passing of the award on 25.07.2015, the respondent no. 2 issued notices to the parties concerned on 17.08.2015, a copy of which has been annexed as Annexure No. 13 to the writ petition which also indicates that the matter was still live before the respondent no. 2 who was conscious of the fact that conflicting claims were available and pending before him which had to be decided.
41. It is in furtherance thereof that the petitioners made their applications on 22.08.2015, 26.08.2015 and 21.09.2015. Thus, it cannot be said that the applications before the respondent no. 2 seeking reference was beyond time nor the limitation set forth in sub Section 2 of Section 18 of the old Act equivalent to Section 64 of the new Act, was breached.
42. At this juncture, it will be relevant to mention that once the Collector was required to make a reference under Section 18 of the old Act and under the provisions of the Act, the Collector does not have any discretion in the matter rather he is obliged to refer the disputes for reference then considering the applications made which were available on the record, apparently the time or the limitations had not expired as the applications were already available on record prior to making of the award and even in pursuance of the notice issued by the respondent no. 2 himself, the applications were made on 22.08.2015 and 26.08.2015.
43. The limitation as provided under Section 18 clearly indicates that an application shall be filed within six weeks from the date of Collector's award if the person making it was present or represented before the Collector at the time when the award was made or within six weeks from the notice issued by the Collector under Section 12 (2) or within six months from the date of Collector's award whichever expires first.
44. The award was made on 25.07.2015 and the period of six weeks in any case would have expired in the first week of September, 2015, whereas the record indicates that the applications were moved on 22.08.2015 as well as 26.08.2015. The notice annexed as Annexure No. 13 to the writ petition is also dated 17.08.2015 requiring the parties to submit their evidences by 22.08.2015. Thus, this Court is satisfied that as far as the plea of limitation raised by the respondent no. 3 is concerned it does not merit any consideration and as such the same is turned down.
45. Coming to the last issue regarding the fact whether the writ petition could be dismissed for non-disclosure of complete facts is concerned, this Court finds that as far as the writ petitioners are concerned they had brought to the notice of the Collector that there were disputes pending between the parties. It had indicated that the respondent no. 3 was claiming on the basis of mutation entry which he had got in his name on 27.07.1978. It was also brought to the notice of the Collector that the writ petitioners had made an application for recall of the order dated 27.07.1978 by making an application in the year 2010.
46. Though, the aforesaid application had been dismissed in default for which the writ petitioners had made an application for restoration which also stood dismissed in default against which another application was moved which was allowed on 21.07.2016.
47. The learned counsel for the respondent no. 3 may be correct in submitting that vide order dated 21.07.2016 it was not the original recall application registered as Case No. 1 & 2 of 2010 which was restored rather it was the restoration application which had been dismissed on 30.05.2015 came to be revived. However, the fact remains that the matter remained pending before the competent authority who was seized of the matter and though the writ petitioners may not have been vigilant enough, which lead to the dismissal of their applications, it cannot be said that they were negligent to have left the matter completely. Whereas the record indicates that they had made an application regarding recall which was seized by the authority concerned. The writ petitioners may not have made a clear and candid disclosure but there has been a mention that the litigation has been pending. As far as the litigation pending in the Civil Court is concerned, the respondents did not make any reference to it, however, the submission of the learned counsel for the writ petitioners is that the aforesaid litigations was not relevant as far as the respondent no. 2 is concerned, inasmuch as, they are related to other properties and the suit was for seeking declaration and injunction which related to other properties as well and were pending in the Court of competent jurisdiction since 1999.
48. The writ petitioners with their rejoinder affidavit have brought on record the documents including the statements recorded in the Civil Suits and from the perusal of the same it indicates that severe and bitter litigation was ensuing between the parties. A reference to the same had been made by the petitioners while making an application before the respondent no. 2 as shall be evident from the copies of the application annexed as Annexure No. 8 and Annexure No. 9 to the writ petition.
49. Learned counsel for the respondent no. 3 has also relied upon the decision of the Apex Court in the case of Prestige Lights (Supra), wherein the Apex Court has held that while entertaining a petition it is necessary for the party approaching the High Court to place all facts without any hesitation and in case of suppression or facts are twisted, the Court may refuse to entertain the writ petition and dismiss it without entering into merits. There is no quarrel on the aforesaid proposition, however, as already indicated in the preceding paragraphs that there has been a mention of litigation between the parties, though, not in graphic detail. However, when the fact of incomplete disclosure is compared with the effect of non-interference with the impugned order, then this Court finds that by dismissing the writ petition only on the ground of non-disclosure shall cause greater injustice and for the said reason, this Court is not inclined to dismiss the writ petition on the aforesaid grounds.
50. In view of the above, it cannot be said that there has been a complete non-disclosure of the litigation. At best, it can be said that there was not a complete disclosure but at the same time another fact that requires consideration is that the Collector is required to consider the fact whether the person making the application seeking reference is an interested person who has some semblance of right to raise objection to get the disputes referred for adjudication to this Court. In order to come to a finding whether the petitioners were interested persons as defined under Section 3 of the old Act of 1894 is concerned, all that the petitioners had to indicate that they were persons claiming an interest in the compensation to be made on account of acquisition.
51. Since the petitioners were claiming in the compensation on the basis of their right in the land in question and the disputes were pending since 1999 and even in respect of the property the subject matter of acquisition, the mutation order was challenged in the year 2010, thus, it cannot be said that the petitioners were not persons interested. (See paragraph 8 in the case of Himalayan Tiles and Marble (P) Ltd. v. Francis Victor Coutinho, reported in AIR 1980 SC 1118) relevant portion of which is being reproduced hereinafter.
"8. It seems to us that the definition of "a person interested" given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested, in the Government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the Government. Thus, it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation."
52. Thus, this Court is of the considered view that the petitioners were interested persons and the non-disclosure of the entire set of litigation would not affect the rights of the petitioners to maintain the above writ petitions though, it would have been an ideal situation where the writ petitioners would have detailed all the litigations. But since, the Collector only has to consider that the persons before him are persons interested within the meaning of the term interested person as defined in the Act and if the applications seeking reference is within time then the Collector does not have any jurisdiction to withhold but to send the matter for adjudication before the Court under these circumstances even if all the details of the litigations pending between the parties had or not been disclosed would not deprive the petitioners of maintaining the above writ petitions.
53. Now as far as the reliance placed by learned counsel for the respondents on the decision of Ramesh Chandra Vs. Tanmany Developers (Supra) is concerned, the same is clearly distinguishable on facts, inasmuch as, in the said case, the persons were seeking apportionment on the basis of an agreement to sale and it is well settled that the agreement to sell does not create any right. Further, in the said case a Civil Suit had already been filed for the same relief and for the said reasons the Apex Court refused to entertain. In the present case the facts are completely different and the litigations in the Civil Court is not what is the subject matter of the dispute before the Special Land Acquisition Officer.
54. The decisions of Union of India Vs. Major General Shri Kant Sharma (Supra) also is not applicable to the facts of the case even though the proposition therein is largely not disputed that where a statutory forum is created for redressal of grievances, a writ petition should not be entertained. Since in the present case the authority under the Act of 1894 has transgressed its jurisdiction and there is no other forum of appeal, accordingly, in such a situation, the writ petition against the order passed by the respondent no. 2 is maintainable and, therefore, the decision cited by the learned counsel for the respondent no. 3 is not applicable.
55. Similarly, the decision relied by learned counsel for respondent no. 3 in the case of Mohammad Hasnuddin Vs. State of Maharashtra (Supra) the same is also on a different set of facts and in light of the later decision of the Apex Court in the case of Sharda Devi, it would be seen that the same clearly covers the field whereas the decision of Mohammad Hasnuddin (Supra) is on the different footing.
56. The reliance placed by learned counsel for the respondent no. 3 in the case of Shahid Zamal (supra) wherein it has been held by the Apex Court that an application which contains the grounds for reference should be taken to be the proper application. Since the provisions of the C.P.C. do not apply and from the perusal of the record it indicates that the applications made by the writ petitioners did contain the facts which gave rise to the grounds upon which they were agitating their claims, therefore, it cannot be said that the application moved by them was completely devoid of the necessary facts which gave rise to the grounds upon which they were agitating their claims, therefore, also the submissions as well as the said judgment of Shahid Zamal is not applicable in the present facts and circumstances of the case.
57. Thus, this Court finds that the matter required to be adjudicated on merits and so in view of the detailed discussions as made above, this Court is of the considered view that the respondent no. 2 while passing the impugned order has committed an error in deciding the dispute, whereas it ought to have referred the matter for adjudication before the appropriate Court. Another error committed by the respondent no. 2 was that while passing the order dated 28.09.2015 it only considered the application before it dated 13.06.2014 and did not take note of the subsequent applications and documents which were filed by the parties including upon the notice issued by the respondent no. 2 himself and as such the application under Section 18 of the old Act, though, filed after passing of the award, yet the same has not been considered and for this reason as well the impugned order is bad.
58. As a consequence of the detailed discussion, the order impugned dated 28.09.2015 is liable to be quashed. Accordingly a writ of certiorari is issued and the order dated 28.09.2015 passed by respondent no. 2 is quashed.
59. The respondent no. 2 is directed to make the reference and relegate the parties to the appropriate Court for disposal of their disputes in accordance with law.
60. With the aforesaid, the writ petition stands allowed and the order dated 28.9.2015 passed by the respondent no. 2 is quashed/set aside, however, there shall be no order as to costs.
[Jaspreet Singh, J.] [Pankaj Kumar Jaiswal, J.] Order Date: 05.09.2019 Asheesh