Karnataka High Court
The Special Land Acquisition Officer, ... vs Lakshmanbabu Gayakwad And Ors. on 14 November, 2006
Equivalent citations: ILR2006KAR4563, AIR 2007 (NOC) 268 (KAR.) = 2007 (1) AIR KAR R 309, 2007 (2) ABR (NOC) 292 (KAR.) = 2007 (1) AIR KAR R 309, 2007 (1) AIR KAR R 309, 2007 A I H C 740, (2007) 2 KANT LJ 332, (2007) 51 ALLINDCAS 219 (KAR)
Bench: H.L. Dattu, A.S. Bopanna
JUDGMENT
1. This appeal arises out of an order passed by a learned Single Judge of this Court in W.P. Nos. 21684-21697/2001 & 37510-37514/2000 dated 29.11.2001. By the impugned order, the learned Single Judge has quashed the order passed by the Special Land Acquisition Officer under Section 28-A of the Land Acquisition Act, 1894 (hereinafter for the sake of brevity referred to as 'Act') and further, has directed the Special Land Acquisition Officer to reconsider the applications filed by the petitioners under Section 28-A of the Act afresh and to pass appropriate orders in accordance with law.
2. Respondents in the writ petitions, being aggrieved by the aforesaid order of the learned Single Judge are before us in this appeal.
3. There is a delay of nearly 572 days in filing the appeal. Keeping in view the question of law involved in this appeal, the delay in filing the appeal is condoned and accordingly, the appeal is heard on merits.
4. Petitioners in the writ petitions, at the first instance, were before this Court in W.P. Nos. 30561-30574/1999. The grievance of the petitioners then was, that their applications filed under Section 28-A of the Act has not been considered by the respondent - Special Land Acquisition Officer inspite of long lapse of time. Therefore, they had requested the Court to issue a direction to the respondents. The learned Single Judge of this Court by his order dated 1.10.1999, had allowed the writ petitions and had directed the respondents to dispose of the applications filed by the petitioners under Section 28-A of the Act in accordance with law and in accordance with the provisions of the Act, within a period of six months from the date of receipt of a certified copy of the order.
5. After disposal of the writ petitions, the Special Land Acquisition Officer has rejected the applications filed by the petitioners, on the ground, that the petitioners had consented for passing of an award under Section 11(2) of the Act and therefore, they are not entitled to seek re-determination of the compensation amount awarded.
6. In the present batch of writ petitions filed, their case is, that their lands situate at Nandagaon Village, Athani Taluk, Belgaum District, was acquired by the acquiring authority for establishing a Rehabilitation Centre for the persons displaced on account of construction of Upper Krishna Project. After such acquisition, the petitioners had filed an application in writing before the Special Land Acquisition Officer for passing a consent award. In view of the request made by the petitioners in writing, the Special Land Acquisition Officer had passed an award and in that, had incorporated the request made by the petitioners by determining the compensation payable for dry lands at Rs. 42,000/- per acre, and a sum of Rs. 76,000/- per acre for the wet lands. Petitioners did not choose to file any applications before the Special Land Acquisition Officer under Section 18 of the Act to make a reference to the Civil Court for adjudication and proper determination of the market value of the lands acquired, since the award passed was by their consent. It appears, some of the persons, who had also lost their lands under the very same notification, had requested the Special Land Acquisition Officer to refer the matter to the Civil Court for proper determination of the market value of the lands acquired, and also for enhancement of the compensation amount awarded by the Special Land Acquisition Officer. Pursuant to me request so made, the Special Land Acquisition Officer had referred the matter to the Civil Court and the same came to be registered in LAC Nos. 3 to 19/1997. It is their former case, that the (earned Civil Judge by his order dated 30.11.1998, has enhanced the compensation both in the case of dry and the wet lands.
7. Making it as foundation the order passed in LAC Nos. 3 to 19/1997, the petitioners, who had opted for consent awards, had filed an application before the Special Land Acquisition Officer under Section 28-A of the Act for re-determination of the amount of compensation. The Special Land Acquisition Officer has rejected the said applications, on the ground, that petitioners had consented for passing of an award under Section 11(2) of the Act and therefore, they cannot be maintaining an application under Section 28-A of the Act. It is that order passed by the Special Land Acquisition Officer was the subject matter of the writ petitions before this Court.
8. The learned Single Judge of this Court, following the ratio decidendi of the Apex Court in the case of Babua Ram and Ors. v. State of Uttar Pradesh and Ors. 1995 (4) KIJ 61 (SC), has allowed the writ petitions and has directed the Special Land Acquisition Officer to reconsider the applications filed by the petitioners afresh and pass appropriate orders in accordance with law, keeping in view the award passed by the Civil Court in LAC Nos. 3 to 19/1997. It is this order passed by the learned Single Judge has been questioned by the respondents in the writ petitions before us in this appeal.
9. Smt. Vidya, learned Additional Govt. Advocate for the appellants, would contend, that the learned Single Judge was not justified in allowing the writ petitions filed by the petitioners (respondents in the appeal) and further, directing the respondents therein (appellants in the appeal) to reconsider the applications filed by the petitioners for re-determination of the amount of compensation payable on the basis of an award passed by the Civil Court in LAC Nos. 3 to 19/1997. Therefore, submits, that the order passed by the learned Single Judge is illegal and the same requires to be set aside by this Court. In support of her contentions, the learned Additional Govt. Advocate has relied on the observations made by the Apex Court in the case of Ishwarlal Premchand Shah and Ors. etc. v. State of Gujarat and Ors. , in the case of State of Gujarat v. Daya Shamji Bhai , in the case of Abdul Aziz Abdul Razak and Anr. v. Municipal Corporation of Greater Bombay and Anr. and also the observations made by a Constitution Bench of the Apex Court in the case of Union of India and Anr. v. Hansoli Devi and Ors. .
10. Per contra, Sri Mahanthesh S. Hosmath, learned Counsel appearing for the respondents contends, that the learned Single Judge was justified in allowing the writ petitions by following the dicta of the Apex Court in Babua Ram's case 1995 (4) KLJ 61 (SC).
11. The one and the only issue that arises for our consideration and decision in this appeal is, whether the petitioners (respondents in the appeal), who had opted for passing of consent award, can they be maintaining an application under Section 28-A of the Act for re-determination of the compensation amount awarded on the basis of an award passed by the Civil Court?
12. In order to answer the aforesaid issue, in our opinion, some of the provisions of the Land Acquisition Act require to be noticed.
Section 11(1) of the Act provides for holding of an enquiry and passing of an award by the Collector on receipt of statements of claims of persons interested in the lands. In the Land Acquisition maters, lands are acquired by the acquiring authority for a public purpose by issuing notifications under Sections 4(1) and 6(1) of the Act. After issuing such notifications, the acquiring authority is expected to pass an award within a particular time frame and after passing such award, the acquiring authority is once again expected to deposit the amount awarded by it before a competent authority and thereafter, take possession of the lands acquired by issuing notifications under Sections 16(1) and (2) of the Act.
13. The award passed by the Special Land Acquisition Officer/Collector is an administrative order. It is his best judgment, in respect of the value of the land as on the date of issuing preliminary notification. While passing the award, he is expected to enquire into the objections, if any, as to the measurement of the lands to be acquired; into the value of the land on the date of the publication of the notification under Section 4(1) of the Act; and into the respective interest of the persons claiming the compensation.
14. Now we come to Section 11(2) of the Act The said provision is relevant for the purpose of disposal of the issue that we have raised for our consideration. Therefore, the same is extracted and it reads as under:
Section 11(2) Notwithstanding anything contained in subsection (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
15. Sub-section (2) of Section 11 of the Act is an exception to Sub-section (1) of Section 11 of the Act. Therefore, the legislature consciously has used the expression 'not withstanding anything contained in Sub-section (1) of Section 11 of the Act". Under this provision, the person, who has lost the lands by an act of acquisition by the acquiring authority, may make an application in writing, as provided under the Rules framed by the State Government, for passing of an award by consent. This can be done at any stage of the proceedings before the Special Land Acquisition Officer/Collector/Deputy Commissioner. If the Special Land Acquisition Officer/Collector/Deputy Commissioner is satisfied with the request made by the owners of the lands, who have lost the lands in acquisition proceedings, without making further enquiry, he may pass an award in terms of the offer and acceptance made by the owners of the lands. The offer and acceptance would be in the form of an agreement filed before the Special Land Acquisition Officer. In a nutshell, the statute gives the power to the Collector/Special Land Acquisition Officer to make an award in terms of the agreement under Sub-section (2) of Section 11 of the Act without further enquiry. The award so passed is a valid award and binding on both the parties.
16. Sub-section (3) of Section 11 of the Act envisages, that compensation determined under Sub-section (2) of Section 11 of the Act will not affect the determination of the compensation in respect of the other lands in the same locality or elsewhere acquired under the provisions of the Act.
17. Sub-section (4) of Section 11 of the Act envisages, that an agreement made under Section 11(2) of the Act need not be registered as required under the provisions of the Registration Act, 1908.
18. Under Section 18 of the Act, any person interested in the lands, who has not accepted the award of the Deputy Commissioner/Special Land Acquisition Officer, may apply in writing to the Deputy Commissioner, that the matter be referred to the Civil Court for determination, if he has any objection to the measurement of the land, the amount of compensation awarded and also for apportionment of the compensation among the persons interested.
19. Section 28-A of the Act finds a place under Part in of the Act. The said Section is incorporated by an amendment made to me Act by Act No. 68/1984. The said provision is prospective in nature. It provides for re-determination of the amount of compensation on the basis of an award passed by the Civil Court. The said provision is relevant for the purpose of this case. Therefore, it is extracted and it reads as under:
Section 28-A: Re-determination of the amount of compensation on the basis of the award of the Court:
(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, Sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court.
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under Sub-section (1) conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under subsection (2), may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such references as they apply to a reference under Section 18.
20. A reasonable construction of the aforesaid provision is: Firstly, an award has been passed by the Court under Part III of the Act after coming into force of Section 28-A of the Act. Secondly, by the said award, the amount of compensation in excess of the amount awarded by the Deputy Commissioner/Special Land Acquisition Officer under Section 11 of the Act has been allowed in that reference. Thirdly, that the person filing the application under Section 28-A of the Act is interested in the land notified under the same notification issued under Section 4(1) of the Act for reference to the Civil Court. Fourthly, that the person filing application under mis Section did not choose to make the application before the Deputy Commissioner under Section 18 of the Act for reference to the Civil Court. Fifthly, the applicant files the application under Section 28-A of the Act within three months of the date of the award on the basis of which the applicant seeks re-determination of amount of compensation awarded by the Deputy Commissioner/Special Land Acquisition Officer and lastly, the applicant must be an aggrieved person by the award passed by the Collector.
21. In Section 28-A of the Act, the legislature consciously has used the expression 'person aggrieved by the award passed by the Collector'. The meaning of the expression 'aggrieved' has been succinctly explained by the Apex Court in the case of Babua Ram and Ors. v. State of Uttar Pradesh and Ors. 1995 (4) KLJ 61 (SC). It is worthwhile to extract the passage as understood and explained by the Apex Court. The same is as under:
17. In K. Rangaiah v. Special Deputy Collector (Land Acquisition), this Court observed that in an acquisition proceedings, lands situated in the same locality and in the neighbouring locality when are possessed of the same comparable advantages, the owners of the former lands are entitled to the same rate of compensation as the owners of other lands as determined by the Judgment of the High Court which had become final as otherwise it would be inequitable and discriminatory. In other words, the owners of the lands possessing the same kind and same quality etc. are entitled to parity in payment of compensation for their lands. Section 28-A(1) is intended to overcome the hurdle created by Section 18(1) and Second Proviso to Section 31(2) in the matter of obtaining equal compensation for similar acquired lands. Equal compensation for similar acquired lands could be got by all the interested persons, if their lands are acquired under the same Notification. In other words, if an owner fails to avail of the right and remedy under Section 18(1), Section 28-A(1) grants an extra right and remedy for re-determination of the compensation payable to him for his land on the basis of an award of the Court giving to an owner of another land covered by the same Notification under Section 4(1) and under the same award. The payment of higher compensation to his neighbouring land-owner makes an applicant an aggrieved person to claim re-determination of the compensation payable to him for his land. The person aggrieved therefore, in this context, would mean a person who had suffered legal injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affectation of his title to compensation.
18. In Collins English Dictionary, the word "Aggrieved" has been defined to mean "to ensure unjustly especially by infringing a person's legal rights". In Webster Comprehensive Dictionary, International Edition at page 28, aggrieved person is defined to mean "subjected to ill-treatment, feeling an injury or injustice. Injured, as by legal decision adversely infringing upon one's rights". In Strouds Judicial Dictionary, Fifth Edition, Vol.1, pages 83-84, person aggrieved means "person injured or damaged in a legal sense". In Black's Law Dictionary, Sixth Edition at page 65, aggrieved has been defined to mean "having suffered loss or injury; damnified; injured", aggrieved person has been defined to mean "One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word "aggrieved" refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation".
19. The person aggrieved must, therefore, be one who has suffered a legal grievance because of a decision pronounced by Civil Court giving higher compensation for an acquired lands similar to his own while he is denied of such higher compensation for his land because of operation of Section 18 read with Section 31 of the Act resulting in affectation of his pecuniary interest in his acquired land is directly and adversely in that award of the Collector made under Section 11, he becomes as such aggrieved person and entitled to avail of the right and remedy conferred upon him under Section 28-A(1) to make good his denied right to receive compensation in excess of the amount awarded by the Collector/I.A.O....
22. The next question would be, whether a person, who has opted for passing of the consent award and who has received the compensation amount pursuant to such an award, can he be called an aggrieved person?
23. In Babua Ram's case 1995 (4) KLJ 61 (SC), the Apex Court after exhaustive analysis of the term 'aggrieved person' has stated, that it would mean a person who has suffered a legal injury or one who has been unjustly deprived or denied something which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affectation of his title to compensation.
Under Section 11(2) of the Act, the statute envisages, that the persons interested in the land, at any stage of the proceedings of the Collector, may agree in writing on the matters to be included in the award of the Collector. On receipt of such request, the Deputy Commissioner, without making any further enquiry, may make an award according to the terms of such agreement. Under this Section, a right is conferred on the persons interested in the land to enter into an agreement with the Deputy Commissioner on the matters to be included in the award that may be made by the Deputy Commissioner. By exercising this right, the owner of the lands is authorised to settle with the Deputy Commissioner matters in dispute by mutual concession, to avoid any legal proceedings, but to settle it between themselves by a give and take agreement. It is a right given to the persons interested in the land. By this process, they enter into an agreement for preventing and for putting an end to all further litigations. It is his voluntary act and by this process, he waives all his rights under the Act, to avoid delay in determination of the compensation amount payable to the lands acquired. The Act confers this right on the persons interested in the land. Having agreed in writing on the matters to be included in the award that may be passed, and the authorities having acted as per the agreement, the public trust is estopped from making a claim contrary to the terms of the agreement and insist upon the enforcement of the rights waived in law. A compromise is always bilateral and means a mutual adjustment. According to New Standard Dictionary, a 'compromise' means agreement or adjustment for me settlement of controversy by mutual concession often involving partial surrender. Therefore, a person who has entered into an agreement voluntarily, mind you, that there is no prohibition in law against waiving of any right under the Act, to settle the matters to be included in the award of the Deputy Commissioner, cannot be an "aggrieved person", since he is not unjustly deprived or denied of something, which he would be entitled to obtain under the Act. The Supreme Court in the case of State of Gujarat v. Daya Shamji Bhai AIR 1996 SC 133, while considering the issue whether a person interested in the land, who had opted for consent award, whether he could seek reference to the Civil Court under Section 18 of the Act was pleased to observe that "Sub-section (2) of Section 11 gives right to the parties to enter into an agreement to receive award compensation awarded under Section 11 in terms of the contract. In fact, it would be more expeditious to have the dispute sorted out so as to avoid delay in determination of proper compensation. The contract between the owners and the Collector in writing of the terms to be included in the award of the Collector is conclusive and binds the parties. They would not be entitled to seek any reference for enhancement of the compensation required to be adjudicated under Section 23(1) of the Act".
24. In our considered opinion, when a person interested in the land having opted for consent award under Section 11(2) of the Act, is not entitled to seek any reference for enhancement of the compensation under Section 18 read with Section 23(1) of the Act, and cannot be an 'aggrieved person' to claim re-determination of the amount of compensation on the basis of the award of the Civil Court.
25. The award made under Section 11(2) of the Act in terms of the agreement is a valid award under the Act. It has all the ingredients of a 'composition deed', a deed by which one party compounds with another. This term is normally used when there is an agreement between a debtor and a creditor. It simply means an agreement made by the debtor with the creditor to pay specified amount and which is accepted by the creditor in satisfaction of their entire claims whatever thus proffered. A creditor having accepted the offer made, thereafter cannot contend mat he was unjustly deprived of his claims and then agitate the matter in a law suit. A case law nearer to the point is the one decided by a Full Bench of mis Court in the case of S.V. Bagi v. State of Karnataka 87 STC 138, while explaining whether a person, who had opted for composition, can he be called an aggrieved person, has observed that, "a person, who had opted for composition in lieu of prosecutions and penalties, etc., cannot be an aggrieved person". Further, the Full Bench of this Court has stated, that "the process of compounding is completed only when the money that is agreed upon actually changes hands. If this is so, there can never be a situation where the person who has committed or is reasonably suspected of having committed an offence under the Act can be an aggrieved person".
That was a case decided by the Full Bench of this Court under the provisions of the Karnataka Sales Tax Act. The question before the Court was, "whether a person, who had compounded the offence under Section 31 of the Karnataka Sales Tax Act, 1957, can he be filing an appeal under Section 20 of the Act before the Appellate Authority?" The Full Bench of this Court after considering the earlier Division Bench decisions of this Court, was pleased to observe, that "once an offer is made and thereafter accepted by the opposite party and if the money is exchanged, the compounding is complete and such person cannot be filing an appeal under Section 20 of the Karnataka Sales Tax Act, 1957".
26. To sum up, under Section 11 of the Act, the Collector is authorised to pass two types of awards. One under Section 11(1) of the Act, after holding an enquiry, if a person has not consented for passing of an award and another under Section 11(2) of the Act, if a person opts for passing of a consent award. In the first instance, if for any reason, the person, who had lost his lands and is not satisfied with the compensation awarded, can make an application before the Special Land Acquisition Officer/Collector under Section 18 of the Act with a request to make a reference to the Civil Court for proper determination of the compensation amount payable for the lands acquired and for other purposes also. If for any reason, he does not make any application, then also, he can take the benefit of Section 28-A of the Act by making an application to claim compensation equal to that awarded to his neighbouring land acquired by the same notification under Section 4(1) of the Act. This Section thus lifts the rigour of the bar created by Section 18(1) of the Act and the proviso to Section 31 of the Act, in view of the decision of the Apex Court in Babua Ram's case 1995 (4) KLJ 61 (SC), which view is further explained by the Apex Court in the case of Union of India v. Honsoli Devi . But, a person who opts for passing of a consent award and accepts the compensation amount, then, under Section 11(2) of the Act, he cannot be making an application either under Section 18 of the Act or under Section 28-A of the Act with a request to make reference to the Civil Court for determination of proper compensation amount payable to the lands acquired or for re-determination of the compensation amount on the basis of the award passed by the Civil Court
27. In the present case, the learned Single Judge, while allowing the writ petitions has primarily relied on the observations made by the Apex Court in the case of Babua Ram and Ors. v. State of Uttar Pradesh and Ors. 1995 (4) KLJ 61 (SC). That was a case where some of the owners of the lands had accepted the compensation amount under protest, and had filed an application before the Collector for reference to the Civil Court for proper determination of the compensation. The Civil Court had enhanced the compensation awarded by the Collector. Some of the persons, who had lost the lands under the very same notification, had received the compensation amount without protest. The question that arose before the Supreme Court was, whether the persons, who had taken compensation amount without protest, could they be filing an application before the authority for re-determination of the compensation amount on the basis of an award passed by the Civil Court? The Apex Court after a detailed consideration of the issue, was pleased to observe, that in view of Section 18 of the Act read with proviso to Section 31 of the Act, even a person, who has received the compensation amount without any protest, can still be maintaining an application under Section 28-A of the Act for re-determination of the compensation amount for the lands acquired on the basis of an award passed by the Civil Court.
28. There is an essential distinction between the case that was dealt by the Apex Court and the present case. In the instant case, we are faced with a situation where the owners of the lands, whose lands have been acquired by the acquiring authority, had opted for passing of a consent award. Such a consent award has been passed by the Special Land Acquisition Officer in exercise of his powers under Section 11(2) of the Act. Compensation amount as agreed is also paid to them. Therefore, they cannot be "aggrieved persons" as envisaged under Section 28-A of the Act and therefore, having opted for passing of a consent award, they cannot be maintaining an application under Section 28-A of the Act. Therefore, the Special Land Acquisition Officer was justified in not entertaining the application filed by the petitioners under Section 28-A of the Act, since they have opted for consent award under Section 11(2) of me Act. In that view of the matter, in our opinion, the learned Single Judge was not justified in allowing the writ petitions by following the dicta of the Apex Court in the case of Babua Ram and Ors. v. State of Uttar Pradesh and Ors. 1995 (4) KLJ 61 (SC). In view of the aforesaid discussion, the order passed by the learned Single Judge cannot be sustained and accordingly, it requires to be set aside.
29. In the result, the following:
ORDER I. Appeal is allowed, II. The impugned order passed by the learned Single Judge in W.P. Nos. 21684-21697/2001 and 37510-37514/2000 dated 29.11.2001 is set aside.
III. The order passed by the Special Land Acquisition Officer rejecting the applications filed by the respondents (petitioners in the writ petitions) under Section 28-A of the Act is confirmed.
IV. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.