Sunil S/O. Radhesham Shukla And Another vs State Of Maharashtra, Thr. Collector, ... on 7 July, 2022

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Bombay High Court

Sunil S/O. Radhesham Shukla And Another vs State Of Maharashtra, Thr. Collector, ... on 7 July, 2022

2. Rule. Rule made returnable forthwith. Heard the writ petition finally with the consent of the learned counsel appearing for the rival parties. Though respondent Nos.3, 5, 6, 8 and 9 were served, they were not present in the Court.

3. The petitioners are aggrieved by an order dated 04/02/2021, passed by the Court of 2nd Joint Civil Judge, Senior Division, Wardha, whereby an application filed by the respondent No.10 for rejection of reference under section 30 of the Land Acquisition Act, 1894 (hereinafter KHUNTE 4/23 WP-1415.21.odt-J referred to as "Act"), has been allowed. According to the petitioners, once such a reference was made to the aforesaid Civil Court by the respondent No.2-Sub-Divisional Officer, it ought to have been decided on merits, after recording of evidence and that the said Court erred in throwing out the reference at the threshold.

4. In the present case, land located in Mouza Parsodi, Tahsil Seloo, District Wardha, was acquired by the respondent-State. The award determining compensation payable to the claimant was pronounced on 29/03/1988 and since the land in question, was registered in the name of contesting respondent No.10, i.e. the father of the petitioners, the amount of compensation of Rs.22,992/- was disbursed to the respondent No.10. There is no dispute about the fact that the said land was purchased by the respondent No.10 in the year 1964.

5. At the time when the aforesaid amount of compensation was disbursed as per the aforesaid award in the year 2010, and even thereafter, no dispute was raised by any person in respect of the entitlement of the said respondent for receiving compensation. Later, when the acquired land was to be utilized for the benefit of respondent No.3 i.e. the Jawaharlal Nehru Dry Port Project at Wardha, it appears that KHUNTE 5/23 WP-1415.21.odt-J there was some grievance made and demands raised by landowners for further payment of amount. On 20/05/2016, the Deputy Secretary of the concerned Department of the State of Maharashtra, sent a communication to the respondent No.3 and its officials that in view of the demands made, and also in the backdrop of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, it was decided that further ex gratia amount/additional compensation shall be paid to claimants pertaining to the said acquisition at Rs.7,00,000/- per acre. Since the respondent No.10 was the claimant, who had been paid amount towards compensation as per the aforesaid award, steps were taken by the concerned Authorities to disburse the enhanced compensation of Rs.64,83,750/- into the account of respondent No.10.

6. It is at this stage, that on 05/08/2017, the petitioner No.1 applied before the Collector, Wardha under section 30 of the Act for referring dispute regarding apportionment of the said additional amount, to the Civil Court amongst "joint owners". With reference to the said application, the Deputy Collector (Land Acquisition) sent a letter on 05/09/2017, to the respondent No.2-Sub-Divisional Officer for appropriate action and in pursuance thereof, the reference was made to KHUNTE 6/23 WP-1415.21.odt-J the aforesaid Civil Court under section 30 of the Act, bearing LAC No.46 of 2017.

7. In this proceeding initiated before the said Civil Court, the petitioner No.1 made an application for direction to stop disbursal of the amount to the respondent No.10. The Civil Court passed orders and issued directions to the concerned Bank as regards disbursal of the amount into the account of the respondent No.10.

8. In the said pending proceeding, the respondent No.10 filed an application questioning the maintainability of the reference, bearing Exhibit-55. It was contended that when the petitioner No.1 moved the application before the Collector under section 30 of the Act, the same was directly referred to the Civil Court, without even putting the respondent No.10 or other parties to notice. It was submitted that acquisition had taken place and the award had been pronounced as far back as in the year 1988 and the entire compensation was disbursed immediately in favour of respondent No.10. There was no objection from any quarters at that time and even thereafter and it was further submitted that the amount now being distributed was only an ex gratia amount, having no connection with the compensation determined under the award and KHUNTE 7/23 WP-1415.21.odt-J therefore, section 30 of the Act was not applicable. On this basis, it was prayed that the application be allowed and the reference be held as not maintainable.

9. The petitioner No.1 submitted reply before the Civil Court and opposed the said application. By the impugned order dated 04/02/2021, the said Civil Court allowed the application, thereby holding that the reference was not maintainable. It was held that even the Deputy Collector (Land Acquisition) had sent communication dated 27/11/2017, withdrawing the reference under section 30 of the Act and therefore, the application filed by the respondent No.10 deserved to be allowed.

10. Aggrieved by the said order, the petitioners filed the present writ petition. It is significant that the petitioner No.2 was not the applicant before the Collector under section 30 of the Act and yet the said petitioner chose to join the petitioner No.1 in challenging the impugned order. On 22/03/2021, this Court issued notice in the present petition and on the question of interim relief, it was found that since the share of the petitioners before this Court, came to Rs.13,00,000/-, interim stay would be restricted to only the said amount and disbursal of balance amount would not be affected. The respondents in the present case KHUNTE 8/23 WP-1415.21.odt-J entered appearance through counsel. The petition was opposed strongly by the respondent No.10, i.e. the father of the petitioners, who was the applicant before the Civil Court seeking rejection of the reference as not maintainable. The other private respondents, i.e. respondent Nos.5, 6, 8, 9, 11, 12, and 13 did not oppose the present petition.

11. Mr. R.L. Khapre, learned senior counsel appearing for the petitioners, vehemently submitted that the Civil Court committed a grave error in allowing the application at Exhibit-55, filed by the respondent No.10 and throwing out the reference at the threshold. It was submitted that the nature of dispute raised in the present case on behalf of the petitioners warranted detailed examination and recording of evidence to reach any definitive conclusion. The learned senior counsel referred to the provisions of the aforesaid Act, particularly section 30 thereof, to emphasize that no limitation is prescribed therein and since the case of the petitioners was that cause of action accrued to them only after the death of their mother and when the additional compensation was determined, the reference under section 30 of the Act was correctly made by the Collector and that the same could not have been thrown out at the threshold. The learned senior counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Dr.G.H. Grant v. The State of Bihar, KHUNTE 9/23 WP-1415.21.odt-J reported in AIR 1966 SC 237, Sunderlal v. Paramsukhdas and others, reported in AIR 1968 SC 366 and Sharda Devi v. State of Bihar, reported in AIR 2003 SC 942.

12. It was emphasized that since the interest of the petitioners in the apportionment of compensation arose, in the facts of the present case, after the death of their mother in the year 2015 and when additional compensation was to be disbursed, the petitioners had correctly invoked section 30 of the Act. This contention was pressed on the assertion of the petitioners that the said land was purchased in 1964, only in the name of their father, but from the resources of their mother. As long as their mother was alive, they could not have raised any claim regarding apportionment, but upon her death in the year 2015, they were entitled to raise dispute regarding apportionment of the additional compensation. Much emphasis was placed on the observations made by the Hon'ble Supreme Court regarding entitlement of persons in such a situation where the interest arises after award has been pronounced.

13. The learned senior counsel emphasized that the Civil Court while passing the impugned order, committed a grave error in proceeding on the basis that the Deputy Collector had withdrawn the reference itself.




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 10/23                                                     WP-1415.21.odt-J

It was submitted that once the concerned Deputy Collector had referred the dispute under section 30 of the Act to the Civil Court, the said Authority had no power to withdraw such a reference. It was emphasized that if such a power was held to be available to the Collector, it would have drastic consequences, because findings rendered by the competent Civil Court, confirmed in challenges raised thereto, would stand nullified by the Collector simply withdrawing the reference at any stage. It was submitted that once the dispute was referred to the Civil Court, it had to be disposed of after granting appropriate opportunity to the concerned parties to lead evidence in support of their respective stands. On this basis, it was submitted that the impugned order deserved interference.

14. On the other hand, Mr. Abhijit Deshpande, learned counsel appearing for the contesting respondent No.10, submitted that in the present case, the petitioner No.1 could not have invoked section 30 of the Act at all. By referring to the said provision, it was submitted that an application to the Collector for referring a dispute to the Civil Court would lie only when the dispute arises as regards apportionment of compensation settled under section 11 of the Act. It was emphasized that in the present case, the amount sought to be disbursed by the respondent KHUNTE 11/23 WP-1415.21.odt-J No.3, was only an ex gratia amount, while the compensation determined under the award dated 29/03/1988, as per section 11 of the Act was already disbursed immediately upon pronouncement of the award. On this basis, it was submitted that the application filed by the petitioner No.1 itself was stillborn.

15. Apart from this, it was submitted that when the petitioner No.1 submitted the said application before the Collector, it ought to have been ascertained as to whether there could be said to be any dispute as regards the apportionment of compensation in the context of an award, for reference to the Civil Court. The Collector ought to have put all concerned parties, particularly the respondent No.10, i.e. the recorded owner of the said property, to notice before proceeding in the matter. But, the Collector in the present case mechanically instructed the respondent No.2-Sub-Divisional Officer to take appropriate steps leading to the reference being registered in the Civil Court. It is for this reason that when the reference came to be initiated on 29/09/2017, upon realizing the mistake, the Deputy Collector immediately on 27/11/2017, communicated to the Civil Court that the reference was being withdrawn. Since the reference was withdrawn immediately, it could not be said that KHUNTE 12/23 WP-1415.21.odt-J such an act on the part of the Deputy Collector was either illegal or without jurisdiction.

16. It was further submitted that in any case, the Civil Court was enjoined to examine whether the dispute could at all have been referred by the Collector under section 30 of the Act. Although some interim orders were passed in the reference, the moment the respondent No.10 filed the aforesaid application at Exhibit-55 for dismissal of the reference as not maintainable, the Civil Court correctly analyzed the material on record to conclude that such a reference could not be entertained. The learned counsel for the respondent No.10 relied upon judgments of the Hon'ble Supreme Court in the case of Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and another, reported in AIR 2003 SC 2302 and Meher Rusi Dalal v. Union of India and others, reported in (2004) 7 SCC 362 and the judgment of this Court in the case of Dattaram Deu Desai and others v. Nirakar Devasthan of Palolem, Goa and others, reported in 2003 (3) Mh.L.J. 477 and Comunidade of Bambolim v. Manguesh Betu Kankonkar, reported in 2001 (2) Mh.L.J. 160.





KHUNTE
 13/23                                                     WP-1415.21.odt-J

17. Mr. Yash Maheshwari, learned counsel appearing on behalf of respondent Nos.11, 12 and 13, submitted that he supported the contentions raised on behalf of the respondent No.10 and he further submitted that even if no limitation was prescribed under section 30 of the said Act, an application for making reference under the said provision ought to be made within reasonable time. He also placed reliance on judgment of the Hon'ble Supreme Court in the case of Meher Rusi Dalal v. Union of India (supra).

18. Ms T.H. Khan, learned AGP appeared on behalf of the respondent Nos.1, 2 and 4 and supported the impugned order.

19. Heard the learned counsel for the rival parties and perused the material on record. In the present case, the Civil Court has proceeded to accept the contentions regarding maintainability of the reference raised on behalf of respondent No.10 and accordingly, the reference itself has been thrown out, without consideration in detail.

20. Before considering other contentions raised on behalf of the rival parties, this Court is inclined to consider the contention raised on behalf of the petitioners that the Civil Court ought not to have relied KHUNTE 14/23 WP-1415.21.odt-J upon withdrawal of the reference by the Deputy Collector for holding in favour of respondent No.10. In this context, the learned counsel appearing for the respondent No.10 submitted that such withdrawal of reference could not be said to be either illegal or without jurisdiction, firstly, because the withdrawal was almost immediate upon realizing the mistake and secondly, if there is a power with an Authority to do something, it certainly has the power to undo the same. This Court is of the opinion that merely because in the present case, the reference was withdrawn by the Deputy Collector within a couple of months of having made the same, it cannot be said that such a step was justified because the Authority, in the first place, must have the power to withdraw.

21. A reference is made to the Civil Court under section 30 of the Act for resolution of dispute pertaining to apportionment of compensation. This requires the Collector to reach a conclusion that a dispute exists, which cannot be resolved by the Collector and it would require determination by the Civil Court. This Court is of the opinion that once the Collector concludes that reference of the dispute has to be made to the Civil Court and in fact the dispute stands referred, the Collector does not retain jurisdiction to withdraw such a reference. Accepting the contention of the respondent No.10 is fraught with danger KHUNTE 15/23 WP-1415.21.odt-J for the reason that if the same is accepted, it would lead to a situation where the Collector could annul the findings of the Civil Court, or even higher Courts if the order of the Civil Court is challenged, by simply withdrawing the reference at any stage. After making the reference, the Collector becomes functus officio and it is then for the Civil Court to proceed in the matter. Therefore, the Civil Court in the impugned order could not have relied upon withdrawal of the reference by the Deputy Collector to hold in favour of respondent No.10. The reliance placed by the learned counsel appearing for the respondent No.10 on the judgment in the case of Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran (supra) is misplaced for the reason that in the said judgment, the Hon'ble Supreme Court has only held that the reference Court cannot widen the scope of its enquiry beyond what is referred to it by the Collector. The said judgment in no manner supports the contention raised on behalf of the respondent No.10 in the aforesaid context.

22. Nonetheless, it is necessary to examine whether the Civil Court, in the present case was justified in allowing the application filed by the respondent No.10 at Exhibit-55 and in holding that the reference was not maintainable. The learned senior counsel appearing for the petitioners KHUNTE 16/23 WP-1415.21.odt-J emphasized that once the reference was made to the Civil Court under section 30 of the Act, there was no power in the Civil Court to throw out the reference at the threshold and that the Civil Court was mandated to consider the dispute on merits, by asking the parties to lead evidence in support of their respective claims. In other words, according to the learned senior counsel appearing for the petitioners, the application filed by the respondent No.10 could not have been considered by the Civil Court.

23. This Court is of the opinion that although the Deputy Collector in the present case appears to have mechanically directed the respondent- Sub-Divisional Officer to take appropriate steps on the application moved by the petitioner No.1 under section 30 of the Act, as a consequence of which the reference appears to have been straightaway registered with the Civil Court, even if the Deputy Collector had become functus officio and the reference could not have been withdrawn, the Civil Court could certainly examine as to whether such a reference could be entertained in the facts and circumstances of the present case. The Civil Court derives jurisdiction not just because the Collector refers the dispute to it, but the jurisdiction is derived from the language of section 30 of the Act. The said provision reads as follows:

KHUNTE 17/23 WP-1415.21.odt-J "30. Dispute as to apportionment.- When the amount of compensation has been settled under section 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."

24. It is significant that the dispute pertaining to apportionment can be referred by the Collector to the decision of the Civil Court when such dispute pertains to amount of compensation settled under section 11 of the Act. This obviously means that the dispute must relate to compensation determined under award pronounced under section 11 of the Act. In the present case, amount of compensation determined as per award under section 11 of the Act, was Rs.22,992/- and the same was immediately disbursed, pursuant to the said award dated 29/03/1988. It was disbursed to the respondent No.10, being the registered owner of the land as found in the land acquisition proceedings undertaken under the said Act, on the basis of a registered sale deed of the year 1964, executed in the name of respondent No.10. It is an admitted position that there was no other recorded owner or claimant. No dispute was ever raised when the said amount was disbursed to the respondent No.10, either when it was disbursed or even thereafter.

25. The petitioners were both major when the award was pronounced in the year 1988 and the amount of compensation was KHUNTE 18/23 WP-1415.21.odt-J disbursed to their own father, i.e. respondent No.10. Yet, no dispute was raised at any point in time.

26. The material on record shows that the respondent No.3 on the instructions of the respondent-State Government decided to disburse further ex gratia amount to the persons whose lands were acquired in the backdrop of certain demands made by certain landowners. It appears that the provisions of the Act of 2013 influenced the decision taken by the State for granting ex gratia amount. Letter dated 20/05/2016, sent by the Deputy Secretary of the concerned Department of the respondent- State to the officers of the respondent No.3, records the said backdrop in which the ex gratia amount/additional compensation was to be given. This Court is of the opinion that such ex gratia amount cannot be said to be compensation settled under section 11 of the Act, for section 30 thereof to be made applicable. The ex gratia amount, which at some place is also referred to as additional compensation, can certainly not to be categorized as amount of compensation determined and settled under section 11 of the Act. Therefore, section 30 of the Act would not apply to the said ex gratia amount. The Civil Court was certainly within its jurisdiction to examine as to whether such a reference could be entertained or not.




KHUNTE
 19/23                                                       WP-1415.21.odt-J

27. The other aspect of the matter is, as to whether the petitioners could invoke section 30 of the said Act in the year 2017 when the acquisition was completed, award was pronounced and the compensation was disbursed to the respondent No.10 in the year 1988 itself. Although there is no specific period of limitation prescribed in section 30 of the Act, the Hon'ble Supreme Court in the case of Meher Rusi Dalal v. Union of India (supra) has held that even if no specific period of limitation is prescribed, an application under section 30 of the Act must be made within reasonable time. It is further laid down that what is to be reasonable time would depend on the facts and circumstances of each case and in the facts of the said case before the Court, it was held that reasonable time would be the time as specified in section 18 of the Act. Applying the aforesaid test of reasonable time, this Court is of the opinion that for an acquisition, which was completed in the year 1988, the application moved by the petitioner No.1 in the year 2017 was certainly not within reasonable time.

28. It is also necessary to refer to the nature of claim raised by the petitioners. It is contended on their behalf that the subject land was purchased in 1964, only in the name of their father while the source of funds was that of their mother. It was claimed that since their mother KHUNTE 20/23 WP-1415.21.odt-J died in the year 2015, they could not have any cause of action or reason to raise any dispute before that and when the said ex gratia amount/ additional compensation amount was to be disbursed, the cause arose for the petitioner No.1 to apply to the Collector under section 30 of the Act. Much emphasis was placed on a Will Deed dated 23/09/2013 executed by the mother of the petitioners, in support of the aforesaid contention.

29. On this basis, the petitioners claim that since they had made out a semblance of case as regards the cause of action and their entitlement towards share in the ex gratia amount to be disbursed in the year 2017, the Civil Court could not have passed the impugned order to throw out the reference at the outset. The petitioners claim that the proceeding ought to have travelled its full course and then the Civil Court could have reached conclusions in the matter.

30. This Court is of the opinion that the Civil Court was certainly entitled to analyze the material on record for reaching a conclusion as to whether the reference could be maintained or not. A perusal of the impugned order shows that the Civil Court found that the amount in question was not compensation as determined under the provisions of the Act and the said amount was not available for disbursal pursuant to KHUNTE 21/23 WP-1415.21.odt-J award pronounced under section 11 of the said Act. Thus, the Civil Court applied its mind and found that the petitioners could not raise dispute under section 30 of the Act as regards the said ex gratia amount. Having reached the said conclusion, the Civil Court was well within its jurisdiction to consider whether the reference was at all required to be proceeded with. Even if the Civil Court was not right in referring to withdrawal of the reference by the Collector, the impugned order shows that reference was made to section 11 of the Act and in that backdrop, it was found that the ex gratia amount could not be said to be an amount in respect of which a dispute could at all be raised under section 30 of the Act.

31. The claim made by the petitioners about the manner in which the cause of action arose for them is too far-fetched and it certainly did not merit any kind of consideration or determination by the Civil Court exercising jurisdiction under section 30 of the said Act.

32. Insofar as the judgments on which reliance was placed by the learned senior counsel for the petitioners, there can be no quarrel with the proposition that section 30 of the Act does not prescribe limitation as held by the Hon'ble Supreme Court in the case of Dr. G.H. Grant v. The KHUNTE 22/23 WP-1415.21.odt-J State of Bihar (supra). But as noted above, in the judgment in the case of Meher Rusi Dalal v. Union of India (supra), the Hon'ble Supreme Court itself has held that application under section 30 of the Act ought to be moved within reasonable time. As regards the reliance placed on Sunderlal v. Paramsukhdas and Sharda Devi v. State of Bihar (supra), section 30 of the Act would be available to the petitioners only if they could be said to be persons interested in compensation as determined under section 11 of the Act. The said judgments cannot be of any assistance to the petitioners in the facts and circumstances of the present case.

33. In view of the above, this Court is of the opinion that there is no substance in the contentions raised on behalf of the petitioners. The Civil Court cannot be said to have committed any error in allowing the application filed by the respondent No.10 at Exhibit-55 and in dismissing the reference under section 30 of the Act. Nonetheless, the petitioners may file civil suit, if so advised, as regards their grievance, as indicated in judgment of this court in the case of Comunidade of Bambolim v. Manguesh Betu Kankonkar (supra). If the petitioners choose to file such a civil suit, it would be decided by the competent civil court in accordance with law, without being influenced by the observations made herein.




KHUNTE
                       23/23                                                        WP-1415.21.odt-J

34. Accordingly, the writ petition is dismissed. The interim order dated 22/03/2021 is vacated.

35. Pending application(s), if any, is(are) disposed of.

36. Rule stands discharged. No costs.

JUDGE Signed By:GHANSHYAM S KHUNTE Signing Date:07.07.2022 17:18 KHUNTE

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