NEUTRAL CITATION
C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15061 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ZUBEDABEN KEJARBHAI GULAMHUSENWALA THRO POA AND
HER SON
Versus
STATE OF GUJARAT & 30 other(s)
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Appearance:
for the Petitioner(s) No. 1
MR ANSHIN DESAI, SENIOR COUNSEL WITH
MS MARIYA M DALAL(3957) for the Petitioner(s) No. 1
MR KRUTIK A. PARIKH, ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1
MR RD DAVE(264) for the Respondent(s) No. 3,4
MS AMI N BHATT(3372) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30,3
1,6,7,8,9
RULE SERVED BY DS for the Respondent(s) No. 2,5
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NEUTRAL CITATION
C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P.
MAYEE
Date : 25/08/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Heard learned counsels appearing for the parties and perused the record.
2. The petitioner claims to be the owner having interest in the property in question, on the basis of a sale deed dated 20.11.2006. It is stated in the writ petition that the petitioner had purchased the land-in-question by the aforesaid registered sale deed from Ganpatbhai and others, who are impleaded as private respondent Nos.6 to 31 herein. It is submitted that the name of the petitioner was mutated in the revenue record by way of a provisional / kachcha entry No.3525 dated 2.12.2006. However, the said kachcha entry was later cancelled on technical ground that the copy of Village Form No.7/12 Page 2 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined was not submitted within prescribed time limit. In March 2008 and again on 20.12.2012, the petitioner had applied for N.A. permission. After inquiry, the name of the petitioner was entered in the revenue record by Mutation Entry No.3603 dated 7.10.2008. In the meantime, notification dated 25.3.2008 under Section 4 of the Land Acquisition Act, 1984 (in short as 'LA Act') had been issued. The petitioner moved objection under Section 5A of LA Act with regard to the notification under Section 4 of the Land Acquisition Act which was ultimately decided and the notification under Section 6 of LA Act was issued on 23.6.2009. The award dated 23.2.2011 has been declared.
3. The contention is that in the award, the name of the original owner had been entered, though at various stages of the proceedings prior to making of the award, it had come the knowledge of the revenue authorities that the land-in-question was sold to the petitioner. The contention is that the said fact was also brought to the knowledge of the Special Land Acquisition Officer and the Page 3 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined revenue authorities while making the application under Section 5A of the LA Act. The submission is that with the declaration of the award dated 23.2.2011 in the name of the original owners, the petitioner is deprived his right to seek disbursement of compensation though the land in question to transfer in his name by way of a registered sale deed, much prior to the acquisition.
4. For this reason, the petitioner had moved an application dated 19.12.2011 for setting aside the award, which, according to him, is still pending. Another application under the Right to Information Act dated 19.12.2011 has been filed by the petitioner, a copy of which has been appended herein. It is sought to be submitted that while giving reply to the application under the Right to Information Act, vide communication dated 28.12.2011, the claim of the petitioner for disbursement of compensation in his name and the objection raised by him about the name of the original owners being in the award, was turn down.
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5. It seems that Civil Suit No.9 of 2011 was filed by the petitioner with the relief for disbursement of compensation under the award, which, according to learned counsel for the petitioner, has been withdrawn on 10.9.2014.
6. With the above facts, it is contended by the learned counsel for the petitioner that the act of the respondents in mentioning the name of the original owners in the award itself amounts to denial of the right of the petitioner to receive compensation. The contention is that with the rejection of application under the Right to Information Act in the reply dated 28.12.2011, wherein the competent authority has raised an objection that the name of the petitioner was not entered in the revenue record on the date of making of the award, the petitioner has been held remediless. The contention is, thus, that apart from seeking for quashing of the award dated 23.2.2011 in the instant writ petition, the petitioner is left with no other remedy.
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7. On the said submission, on a pointed query made by this Court as to whether disbursement of compensation has been made to the original owners under the award dated 23.2.2011, it is submitted by the learned counsel for the petitioner that the compensation under the award has not been disbursed to the original owners till date. It seems that in view of the order passed by this Court, a notice has been issued for making an inquiry into the matter of disbursement of the award.
8. We may note that while making an award under Section 11 of the LA Act, the Collector makes an inquiry to decide on the questions: (i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation, among all the persons known or believed to be interested in the land, of whom, or whose claims, he has information, whether or not they have respectively appeared before him. Section 12 attaches finality to the award of the Collector, making it final and conclusive evidence, as between the Collector and the Page 6 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined persons interested, whether they have respectively appeared before the Collector or not, all the above noted questions inquired and decided by the Collector. Section 18 provides for making of reference on a written application moved by any person interested who has not accepted the award, with regard to the objections pertaining to: (i) the measurement of the land; (ii) the amount of compensation; (iii) the persons to whom it is payable, or the apportionment of compensation among the persons interested. Sections 29 and 30 contained in Part IV of the LA Act deal with the apportionment of compensation. Section 29 provides that where there are several persons interested, if such persons agree in the apportionment of the compensation, particulars of such apportionment shall be specified in the award. In such event, the award shall be conclusive evidence of the correctness of the apportionment between such persons.
9. However, Section 30 provides that where any dispute arises as to the apportionment of the amount of compensation settled under Section 11, or any part Page 7 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined thereof, or as to the persons whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.
10. Having noted above provisions of the LA Act pertaining to the determination of compensation and apportionment thereof, as also the power of the Collector to refer the dispute to the Court, we find that the determination on the question of apportionment of compensation amongst the persons interested, in the award passed by the Collector, is either based on the information received by him, or result of his belief on the basis of the material before it, or on an agreement between the persons interested in the apportionment of compensation. From a perusal of Sections 11 and 29 of the LA Act, it is evident that the Collector does not decide the right, title or interest of a person interested in the apportionment of compensation. The question of apportionment of the compensation determined by the Collector under the award prepared under Section 11 of the LA Act is determined as per the information received Page 8 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined by him, which may not be conclusive in nature. It seems that for this reason, Section 12 makes the award final between the Collector and the persons interested, whether they had appeared before the Collector or not. It is clear that in view of Section 30 of the LA Act, it is evident that, in case, any dispute arises as to the apportionment of compensation, such dispute has to be referred to the decision to the competent court by the Collector. The Collector, thus, though is not competent to determine the dispute pertaining to the apportionment of compensation determined by it under Section 11 of the LA Act, but, he can decide the question of apportionment on an agreement between the persons interested appeared before him.
11. In the case of G.H. Grant Dr vs. State of Bihar (AIR 1966 SC 237), the Apex Court has considered the question as to whether the Collector or the Land Acquisition Officer, after making the award under Section 11 of the Land Acquisition Act, fixing the compensation for the land acquired and apportionment of the same Page 9 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined amongst the persons interested in the land, can refer the question of apportionment under Section 30 of the Act.
12. It was considered therein that there are two provisions under Sections 18(1) and 30 which invest the Collector with the power to refer to the Court the dispute as to the apportionment of compensation or as to the person to whom it is payable. By sub-section (1) of Section 18, the Collector is enjoined to refer a dispute as to the apportionment, or as to title to receive compensation, on the application within the time prescribed by sub-section (2) of Section 18, of a person interested who has not accepted the award. Section 30 authorises the Collector to refer to the Court after compensation is settled under Section 11, any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person shown in that part of the award under Section 11 which relates to apportionment of compensation, who appears either personally or through a representative or upon whom a notice is served Page 10 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined under sub-section (2) of Section 12 must, if he does not accept the award, apply to the Collector within the time prescribed under Section 18(2), to refer the matter to the Court. But a person who has not appeared in the acquisition proceedings before the Collector, may, if he is not served with the notice of filing, raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Collector for a reference under Section 30, for determination of his right to compensation which may have existed before the award, or which may have devolved upon him since the award. Though under Section 18, the application must be made to the Collector within the time prescribed by sub-section (2) clause (b), but there is no such period prescribed under Section 30. Further, under Section 18, the Collector is bound to make a reference on a petition filed by the person interested. However, under Section 30, the Collector is not enjoined to make a reference, he may relegate the person raising a dispute as to apportionment or as to the person to whom the compensation is payable, to agitate the dispute in a Page 11 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined suit and pay the compensation in the manner declared by his award.
13. It was held therein that the power exerciseable by the Collector under Sections 18(1) and 30 are distinct and may be invoked in exigencies which do not overlap. Exercise of power under Section 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, discretionary: the Collector may, but is not bound to exercise that power.
14. Having discussed the above, we reach at the conclusion that the determination on the question of apportionment by the Collector to the persons known or believed to be interested in the land, appeared before the Collector or on the information received by him, is conclusive only between the Collector and such persons interested. However, any other person who claims to have interest in the land and who had not received any notice or had not appeared before the Collector at the time of making of the award, because of the lack of information / Page 12 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined notice of making of the award, can come forward and raise a dispute before the Collector as to the apportionment of the compensation or any part thereof, by invoking the provisions of Section 30 of the LA Act. On the dispute being raised by such person(s), the Collector shall make an examination to consider the question of apportionment of compensation, by putting notice to the person who as per his information or belief or knowledge was entitled for apportionment of compensation, in the award declared under Section 11 of the LA Act. In case of agreement between the parties with respect to apportionment of compensation, the matter can be decided by the Collector. However, if, on such inquiry, the Collector finds that there is a dispute which requires determination by the Court, such dispute is to be referred to the decision of the Court under Section 30 of the LA Act. There is no gainsaying that only genuine and bona fide disputes are required to be referred by the Collector under Section 30 of the LA Act.
15. Coming back to the facts of the instant case, the Page 13 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined petitioner herein claims to be a person interested on the basis of the sale deed which was executed in his favour in the year 2006, prior to the acquisition proceedings. It seems that in the award dated 23.2.2011, the names of the original owners, i.e. vendors are recorded. However, the dispute with regard to apportionment of compensation has not been brought before the Collector, till date. The writ petitioners herein, instead of approaching the Collector / Land Acquisition Officer by making a proper application seeking disbursement of compensation by establishing himself as a person interested, has rushed to this Court in the instant writ petition.
16. As there is no application before the Collector / Land Acquisition Officer, we do not find any good ground to entertain the instant writ petition, wherein the main relief is for disbursement of compensation in the name of the writ petitioner. We may further note that the question as to whether the petitioner is entitled for disbursement of compensation based on a sale deed dated 20.11.2006, Page 14 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined would require a factual inquiry, wherein opportunity of hearing is required to be given to the original owners / vendors of the said sale deed. Such an inquiry cannot be made within the scope of Article 226 of the Constitution of India.
17. For the aforesaid, we relegate the petitioner to approach the respondent No.2, i.e. Special Land Acquisition Officer, by moving a proper application within a period of two weeks along with the copy of this order appending the documents of his title to the land in question. As soon as the said application is received in the office of respondent No.2, he shall make the necessary inquiry by putting notice to all concerned, before taking any decision on the application moved by the petitioner.
18. The claim of the petitioner for apportionment of the compensation under the award dated 23.2.2011 shall be decided, strictly in accordance with the law, by passing a reasoned and speaking order, preferably, within a period Page 15 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023 NEUTRAL CITATION C/SCA/15061/2012 JUDGMENT DATED: 25/08/2023 undefined of one month from the date of making of the application. It is clarified that, in case, the petitioner is found entitled for apportionment of compensation under the award dated 23.2.2011, payment shall be made at the earliest, after due process of verification.
19. It is further clarified that respondent No.2 shall make an independent inquiry into the claim of the writ petitioner without being influenced by any of the observations made hereinabove.
20. With the above directions, the writ petition stands disposed of. Rule is discharged.
Sd/-
(SUNITA AGARWAL, CJ ) Sd/-
(ANIRUDDHA P. MAYEE, J.) Bharat Page 16 of 16 Downloaded on : Sun Sep 17 02:29:34 IST 2023