Bombay High Court
Jaysukh Raghla Patel vs The Land Acquisition Officer on 17 August, 2012
Author: A.S.Oka
Bench: A.S.Oka
1 fa1398
ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
FIRST APPEAL NO.1398 OF 2008
Jaysukh Raghla Patel ...Appellant
vs.
The Land Acquisition Officer ...Respondent
Mr.Girish R. Agarwal for the appellant Mr.Shrishailya S. Deshmukh for the respondent no.1 CORAM : A.S.OKA, & SHRIHARI P.DAVARE JJ.
DATE : AUGUST 17,2012 ORAL JUDGEMENT:
1 This appeal is today fixed for final hearing.
By this appeal, the appellant has taken an exception to the Judgment and order dated 20 th April 2007 passed by the learned District Judge in a reference under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act).
2 The land subject matter of the reference was notified by a notification under section 4(1) of the said Act dated 6th March 1995. By an Award made on 28th February 1996 the market value at the rate of Rs.50,000/- per Acre was offered. By the said award, compensation of Rs.2,20,000/- was granted for standing trees. The statutory benefits were also offered. The appellant claimant accepted the compensation amount without recording any formal ::: Downloaded on - 09/06/2013 19:00:19 ::: 2 fa1398 protest. On 1st March 1996, an application under section 18 of the said Act was made by the appellant seeking enhancement in market value.
3 A Reference was made to the District Court which was contested by the respondent by filing written statement. One of the contentions raised by the respondent was that the compensation offered by the Land Acquisition Officer was accepted by the appellant without any protest which shows that the respondent has accepted the award under section 11 of the said Act. By the impugned Judgment and Award, the learned District Judge held that the appellant accepted the amount offered by the Land Acquisition Officer without protest, and hence, reference was not competent. The Reference has been dismissed by the impugned Judgment and order only on the ground that same was not competent.
4 The learned counsel for the appellant has fairly invited our attention to the decisions of the Apex Court in cases of Land Acquisition Officer Vs. Shivabai and others (AIR 1997 SC 2642) as well as Ashwani Kumar Dhingra Vs. State of Punjab (AIR 1992 SC 974). He pointed out that the said decisions take a view that unless compensation offered by the Award under section 11 of the said Act is accepted under protest, a reference under section 18 is not competent. He pointed out that there are decisions of the learned Single Judges of this Court including the decision in case of Gebi Bapuji Banjari (Yerwal) Vs. State of Maharashtra [2006 (Supp.) Bombay Cases ::: Downloaded on - 09/06/2013 19:00:19 ::: 3 fa1398 Reporter 760] taking a view that unless the compensation amount is accepted under protest, a reference under section 18 is not competent. He pointed out that relying upon the decision in case of Gebi Bapuji Banjari (Yerwal) (supra), the learned District Judge rejected the reference by the impugned Judgment and order.
5 He pointed out that the view taken earlier by the Apex Court has undergone a change. He invited our attention to the decision of the Apex Court in case of Steel Authority of India Ltd. Vs.S.U.T.N.I. Sangam & others [2009 (5) All M.R. 492 (S.C.)]. He pointed out that the view taken by the Apex Court is that the law does not lay down that the protest shall be made in a particular form and when an application for reference under section 18 is filed, protest to the Award is implicit. He also pointed out the earlier decision of the Apex Court in case Ajit Singh & others vs. State of Punjab and others [(1994) 4 SCC 67] taking the same view. He also invited our attention to the decision of the Division Bench of this Court in Case of Ramanand Laxmidhar Kunde & another Vs. Special Land Acquisition Officer,Goa [1993 (2) Mh.L.J. 1795]. He submitted that the view taken by the Division Bench is that once an application for reference is filed within the prescribed time, the claimants are entitled to get the compensation re-determined irrespective of the fact whether they have received the compensation with or without protest. He, therefore, submitted that the view taken by the ::: Downloaded on - 09/06/2013 19:00:19 ::: 4 fa1398 Reference Court is erroneous. The learned counsel for the respondent supported the impugned Judgment and Order. He pointed out that the Constituted Attorney of the appellant admitted in the cross examination that the compensation payable as per the Award under section 11 of the said Act was accepted without any protest. He submitted that this admission shows that the respondent has accepted the Award under section 11 of the said Act and therefore, the learned District Judge was justified in holding that the reference was not competent.
6We have carefully considered the submissions.
In the present case, the reference application was filed on 1st March 1996. Even the Award of the Reference Court shows that the reference application was filed on 1st March 1996. The Award under section 11 of the said Act was made on 28 th February 1996.
Thus, immediately on the next day, the application for reference was made by the appellant seeking enhancement in market value offered by the Special Land Acquisition Officer .
7 It is well settled position of law that an award under section 11 of the said Act is in the nature of an offer. That is the reason why sub section 1 of section 18 provides that any person interested who has not accepted the award may by a written application to the Collector require a reference to be made to the Court. Thus, the condition precedent for filing an application for reference is that the Award must not have been ::: Downloaded on - 09/06/2013 19:00:19 ::: 5 fa1398 accepted by the person who seeks reference. Sub section (1) of Section 18 of the said Act does not specifically provide that recording a protest while accepting the compensation payable under an Award under section 11 is a condition precedent for filing an application for reference. The sub section (1) of section 18 provides that the person having interest who has not accepted the award may apply for reference under section 18. Therefore, the question whether the claimant who seeks reference under section 18 has accepted the Award or not depends on facts and circumstances of each case. At this stage, it will be necessary to make a reference to the decision of the Apex Court in case of Land Acquisition Officer Vs. Shivabai and others (supra). In paragraph 8 of its decision, the Apex Court has observed thus :
"8 Shri C. Sitaramiah, learned senior counsel appearing for the respondents, contends that on the Division Bench's direction to make an enquiry into the matter, the Land Acquisition Officer himself has referred the matter. Unless there is a proof of service of the notice of the award under sub-section (2) of Section 12 of Section 12, the limitation does not start. We are unable to agree with the learned counsel. It is now settled law that it is not necessary that the award or its copy should be served on the claimant along with notice under section 12(2) of the Act. If the parties are not ::: Downloaded on - 09/06/2013 19:00:19 :::
6 fa1398 present on the date the award came to be passed, then Collector/Land Acquisition Officer shall give immediate notice of his award. The limitation begins to run from the date of notice as per proviso to Section 18 (2). The date of the award and the date of the receipt of the compensation was incidentally the same date. Under these circumstances, it must be presumed that they were present on the date when the award was made and the compensation was received without any protest. Under these circumstances, they are not entitled to seek any reference.
9 No doubt they had filed the writ petition in the High Court for seeking reference. But the High Court's order was only for making reference on verification and to find out correct factual position. The officer himself was in collusion with the claimants and without making any enquiry he made the reference. Subsequently, some persons were impleaded to the reference. That itself indicates that all was not going well. It is now settled position in law that the claimants who receive the compensation under protest and who make application under Section 18(1), alone are entitled to seek a reference; third parties, who have been impleaded, have no right to claim higher compensation by circumventing the process of reference under section 18. Under these ::: Downloaded on - 09/06/2013 19:00:19 ::: 7 fa1398 circumstances, the reference itself is without any jurisdiction and barred by limitation. Thereby, the award of the reference Court is clearly illegal. On appeal, the High Court has not considered all these perspectives and found it convenient to rely on another judgment to uphold the award of the Civil Court."
(underline supplied) In paragraph 9, the Apex Court has observed that the claimants who received compensation under protest and who make an application under section 18 are alone are entitled to seek reference. In the case of Ashvani Kumar Dhingra (supra), in paragraph 10, the Apex Court has observed thus :
"10 The acceptance of compensation under protest was not done by the appellant with a view to safeguard his right to challenge the acquisition itself but to safeguard his right to require the matter being referred by the Collector for determination of the Court in relation to the matters mentioned in S. 18 of the Land Acquisition Act. It is clear from the provisions of S. 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the award. In order to show that the person concerned had not accepted the award the claimants accept the compensation only ::: Downloaded on - 09/06/2013 19:00:19 :::
8 fa1398 under protest because once the compensation awarded in pursuance of the award is accepted without protest the person concerned may lose his right to a reference for various matters mentioned in S. 18 of the Land Acquisition Act."
Thus, what is held in the said decision is that if compensation awarded in pursuance of Award under section 11 is accepted without protest, the person may lose his right to seek reference.
8We may advert to the decision of the Apex Court in the case of Ajit Singh and others (supra). This was a case where aggrieved claimants in a reference under section 18 had moved the Apex Court. The challenge was to the decision holding that the claimants like appellants who had received the amount of compensation as per the award under section 11 without any protest were dis-entitled to compensation. In paragraph 5 of its decision, the Apex Court has observed thus :
"5 Having regard to the contiguity of these lands the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is October 4, 1978 while Exh.R-6 is nearer to it, namely, August 16,1978, in comparison to Exh.A-6 dated January 14, 1977. Inasmuch as the appellants have filed an application for reference under section 18 of ::: Downloaded on - 09/06/2013 19:00:19 :::
9 fa1398 the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants."
(underline added) 9 This decision of the Apex Court was quoted with approval in the recent decision of the Apex Court dated 29th July 2009 in the case of Steel Authority of India (supra). Paragraph 82 of the said decision reads thus :
"82 We may, however, hasten to add that we do not intend to lay down a law that the protest in regard to making of an award must be done in a manner specified expressly. When an application for reference is filed, protest to the award is implicit as has been held by this Court in Ajit Singh & others Vs. State of Punjab and others [(1994) 4 SCC 67].
"5 Having regard to the contiguity of these lands the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is October 4, 1978 while Exh.R- 6 is nearer to it, namely,August 16,1978, in comparison to Exh.A-6 dated January 14, 1977. Inasmuch as the ::: Downloaded on - 09/06/2013 19:00:19 :::
10 fa1398 appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants."
(underline added) 10 We may also make a useful reference to the decision of the Apex Court in case of U.P.State Industrial Development Corporation Vs. Rishabh Ispat Ltd. And others (2007 ALL SCR 652). This was a case where a specific submission was made before the Apex Court which is noted in paragraph 8 of the Judgment that the claimants having accepted the compensation offered to them without demur or protest were not entitled to claim reference under section 18 of the said Act. In paragraph 8 of the said decision, the Apex Court has dealt with the said submission. Paragraph 8 read thus :
"8 Mr.Reddy then submitted that the claimants having accepted the compensation offered to them without demur or protest, they were not entitled to claim a reference under Section 18 of the Act. On the other hand the learned counsel for the claimants contended that this submission was not ::: Downloaded on - 09/06/2013 19:00:19 :::
11 fa1398 founded on correct factual basis since the claimants had filed their objections within time and, therefore, there was no question of their accepting the compensation without protest. The question as to whether the compensation offered was accepted without protest is essentially a question of fact to be determined on the basis of the evidence on record. We have perused the material on record and the find recorded by the High Court in this regard. The High court found that the Collector made his Award on 27th June 1985 and an application for making a reference was filed within time on 6th August 1985. The claimants examined themselves on oath, and it was not even suggested to them that they had accepted the compensation without protest. No evidence was brought on record to establish that the compensation was accepted by the claimants without protest. On the other hand the fact that the claimants promptly filed their objections and sought reference under Section 18 of the Act established that the claimants had not accepted the compensation without protest, but their acceptance was subject to the order that the Reference Court or any other superior court may pass. The High court was, therefore, justified in holding that there was no material to substantiate the contention that the compensation had been accepted without protest by the claimants."
::: Downloaded on - 09/06/2013 19:00:19 :::12 fa1398 (underline added) 11 Going back to the decision of the Apex Court in case of Ashwani Kumar Dhingra (supra), there is no absolute proposition of law laid down by the Apex Court that in every case where the claimant accepts the compensation without recording a formal protest, he is dis-entitled to claim a reference under section 18. Even in the case of Special Land Acquisition Officer Vs. Shivabai and others (supra), the issue which arises in the present appeal viz; the effect of immediately filing of an application for reference did not arise for consideration before the Apex Court. However, in the subsequent three decisions which we have referred above, the issue specifically arose before the Apex Court which has been answered by holding that even the fact that reference application is filed within limitation is sufficient to prove that the Award under section 11 has not been accepted.
12 We have already pointed out that the Award under section 11 of the said Act is in the nature of an offer. After Award under section 11 is made, sub section (2) of Section 12 of the said Act contemplates that the Collector shall give immediate notice of his award to such of the persons interested as are not present personally at the time of declaration of the Award. By notice under section 12(2) of the said Act, the claimant is informed about the amount offered under the Award. Only after service of notice under section 12(2), ::: Downloaded on - 09/06/2013 19:00:19 ::: 13 fa1398 the recourse can be taken to section 16 of the said Act under which the possession can be taken of the acquired land. In a case where there is urgency and the urgency clause in section 17 is applied, the possession can be taken even before the Award is made provided part payment of compensation is made. Section 18 contemplates an objection to be raised by the person interested to the amount of compensation made payable by an Award under section 11 of the said Act. There is nothing in Section 18 to suggest that acceptance of compensation under express protest is a condition precedent for filing a reference application under section 18. The only requirement is that the claimant should not have accepted the Award under section 11. In the present case, on the next day after the declaration of Award under section 11 of the said Act, an application under section 18(1) of the said Act was filed raising an objection to the amount of compensation offered. This fact shows that the appellant did not accept the award. The conduct of the appellant of immediately filing an application for reference shows that the award under section 11 was not accepted by him. The admission relied upon by the learned Judge is an admission of the fact that the compensation offered by the Award was accepted without recording any formal protest. Mere failure to record a formal protest while accepting compensation, will not amount to acceptance of the award in every case.
13 Now turning to the decision of the learned ::: Downloaded on - 09/06/2013 19:00:19 ::: 14 fa1398 Single Judge in case of Gebi Bapuji Banjari (Yerwal), we find that the learned Judge has referred to the decision of the Apex Court in case of Ajit Singh and others. There are subsequent decisions of the Apex Court in the cases of Steel Authority of India Ltd.(supra) and U.P. State Industrial Development Corporation (supra) of the Apex Court clearly taking a view that when a claimant promptly files an application seeking a reference under section 18 (1) of the said Act raising an objection to the compensation offered, the fact that the Award is not accepted is implicit. Therefore, the decision of the learned Single Judge in case of Gebi Bapuji Banjari (supra) cannot be read as a binding precedent. The Trial Court has rejected the reference by placing reliance on the said decision of the learned Single Judge which does not lay down the correct proposition of law.
14 In the circumstances, we find that the view taken by the learned Trial Judge is not correct and the reference ought to have been decided on merits. The learned counsel for the appellant at this stage submits that the appellant may be permitted to lead further evidence. However, we cannot issue such directions while disposing of the appeal and it will be open for the appellant to apply before the Trial Court for grant of permission for leading further evidence.
15 Hence, we pass the following order :
::: Downloaded on - 09/06/2013 19:00:19 :::15 fa1398
i) Impugned Judgment and order dated 20th April 2007 is quashed and set aside and L. A.Case no.1 of 2000 is restored to the file of the learned District Judge at Dadra and Nagar Haveli at Silvassa.
ii) The Reference Court shall proceed to decide the reference expeditiously in accordance with law.
iii) It will be open to the parties to apply to the Reference Court for grant of permission to lead further evidence.
iv) Appeal is partly allowed on above terms.
(SHRIHARI P.DAVARE,J.) (A.S.OKA,J.) ::: Downloaded on - 09/06/2013 19:00:19 :::