Ghanshyam Bansal vs State Of U.P. And Others
2013 Latest Caselaw 7460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
									Court No. - 29
 

 
                                                                                             A.F.R.
 

 
Civil Misc. Writ Petition No. 55939 of 2008 
 

 

 
 Ghanshyam Bansal                   .......                           Petitioner 
 

 
                                                Versus
 
 State of U.P. And others             .....                       Respondents
 

 
					 And 
 

 
Civil Misc. Writ Petition No.  56854 of 2008 
 

 
Smt. Raj Bala                     Vs.             State of U.P. And others 
 

 

 
Hon'ble Sheo Kumar Singh,J. 

Hon'ble Pradeep Kumar Singh Baghel,J.

Heard Sri P.K.S. Paliwal, learned counsel for the petitioner, Sri Triveni Shanker, Sri Ramendra Pratap Singh, learned Advocate and Learned Standing Counsel for respondents.

These are two writ petitions which are against the same impugned order passed by the Special Executive Officer (Land Acquisition) Greater Noida, Gautam Budh Nagar dated 17th October, 2008.

Counsel for both sides advanced their arguments as pleading is complete.

The issue is that whether respondent no. 2 in passing the impugned order has exceeded in his jurisdiction and whether he has jurisdiction to pass order deciding entitlement of a party to get the amount of compensation or in the event of a dispute he is to refer the matter under Section 30 of the Land Acquisition Act.

The issue is very small and has been already attended at several occasions.

The order passed by respondent no. 3 which is a lengthy and reasoned order has been carefully read by the court in presence of counsel for both sides.

After narrating the facts in detail there is clear mention of examination of voluminous evidence which is on record.

Three sets of objections of claimant is referred in the impugned order. First set of the objection is by Raj Bala other by Ghanshyam and third by Chandrapal. Objection of all the claimants has been referred in detail in the order impugned in this petition.

There is reference of certain decisions from the Civil Court, Revenue Court, Consolidation Court and pendency of the matter in this Court for one side or the other.

A perusal of the impugned order makes it clear that a full fledged trial to decide the rights and title of the parties who can be entitled to get the amount of compensation has been done.

We are not concern about the merits of the claim of either of sides but at the same time we are sure that Section 30 of the Land Acquisition Act do not permit the disposal of the claim of claimants by going into the merits of the evidence so as to conclude about the entitlement.

We are to quote Section 30 of the Land Acquisition Act at this place-

Section 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".

We are to refer certain decided cases on the point at this stage.

In an old judgment given by the Apex Court in case of Dr. G.H. Grant Vs State of Bihar reported in AIR 1966 SC 237 the following observation was made-

"The Collector is not authorised finally to deicide the conflicting right of the persons interested in the amount of compensation his primary concern is with the acquisition of the land. It is true that while determining the amount of compensation which may be offered, he has to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether they have appeared before him or not. But the apportionment by him does not determine finally the rights of the persons interested in the amount of compensation: his award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to adjudicate finally upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Consequently, the payments of compensation under S. 31 to the person declared by the award to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right, though devolved on him after the award in a reference under S. 30 or by a separate suit."

In another judgment given in case of Phongseh Misao Vs. Collector of Land Acquisition reported in 1976 Law Suit (Gau) 16 following observation was made-

"The word 'dispute' is not defined in the Act. According to Chambers's Dictionary the word 'dispute' means a quarrel; a contest with words; an argument or a debate. The learned Government Advocate submits that when the State has now disputed, that means challenged, the eligibility of the petitioner to receive the compensation money, there is a dispute. When a word admits of two or more meanings it is to be understood in that sense in which it best harmonises with the scheme or the subject of the enactment. Viewed in such context, we are of the opinion that the word 'dispute' occurring in Section 30 of the L.A. Act means a quarrel between two or more rival parties laying claim over the whole or any part of the compensation money. The use of the word 'persons' i.e. in plural number in the section is also significant. Reference of a dispute as to the persons to whom the amount of compensation is payable is evidently meant for determination as to which person is entitled to receive the money."

In another judgment given by the Apex Court in case of Sri Prasada Rao Mikkilineni and others Vs. State of A.P. And others reported in (2000) 9 SCC 371 following observation was made-

" We find that there is a dispute about the title as also regarding computation of appropriate compensation for acquiring the land in question. Hence, this is a fit case where the High Court should have allowed the Writ Petition and should have directed the Land Acquisition Officer to make reference under Section 18 read with Section 30 of the Land Acquisition Act. Only on this short ground, therefore, this appeal is allowed. The impugned order passed by the High Court is set aside and the Land Acquisition Officer is directed to make a reference, under Section 18 read with Section 30 of the Land Acquisition Act, to the appropriate Court within eight weeks from the receipt of a copy of this order at his end."

In another judgment given by the Bench of this court in case of Omvir Singh and others Vs. State of U.P. And others reported in 2004 (1) AWC 897 following observation was made-

"From the facts of this case it is evident that the parties were claiming title to the land in different shares. They were pleading finality of judgment dated 24.5.1959. The respondents No. 3 to 6 also pleaded bar of Section 49 of the U.P.C.H. Act, It was also to be considered that on whom the share of Kishan Lal devolved. These questions were required to be decided on merits by the Count in reference either under Section 18 or 30 of the Act. The decisions relied by the learned counsel for the respondents do not help him . In such a situation the Collector or the A.D.M. could only make a reference under Section 30 of the Act to the court to decide their inter se title and entitlement to receive the compensation. The Apex Court in Sri Prasada Rao Mnikkilineni V. State of A.P.(2000) 9 SCC 371 had held that where there was a dispute regarding title and also apportionment of the compensation amount, a direction is liable to be issued to the A.D.M. to make a reference under Section 18 read with Section 30 of the Act."

In respect to the another order passed by the same officer committing same mistake of deciding the claim/dispute of title between the parties and entitlement, writ petition came to be filed i.e. Writ C No. 60744 of 2013, Meghraj and another Vs., State of U.P. and 7 others, which was allowed on 27.11.2013.

The observation as made by this court in the judgment referred above are hereby quoted-

"In the present case, the Additional Collector was clearly placed on notice of the fact that there was a serious dispute between the petitioners and the 8th respondent in regard to heir-ship of the deceased Kunwar Pal. As noted earlier, the names of the petitioners were initially mutated in the Khatauni. That order was set aside ex-parte but the ex-parte order setting aside the mutation made in favour of the petitioners was recalled when objections were filed by the petitioners and the proceedings under Section 34 of the Land Revenue Act are still pending.

In this background, we have no hesitation in coming to the conclusion that the 9th respondent clearly transgressed the limits of his jurisdiction when he directed that the compensation should be released to the 8th respondent despite having notice of the conflicting claim of the petitioners. The Additional Collector held that once the land was acquired, the revenue proceedings will necessarily came to an end. This reason given by the Additional Collector cannot be accepted, more particularly when the proceedings under the Land Revenue Act were initiated by the 8th respondent and there was a serious conflicting claim between the petitioners and the 8th respondent in regard to succession to the estate of the deceased before the Additional Collector.

In the circumstances, the only proper course for the Additional Collector was to have referred the dispute under Section 30 of the Act to the decision of the Court.

We direct that the Oriental Bank of Commerce shall issue a Bank Draft in the amount of Rs.57,91,500/- together with the accrued interest, if any, in favour of the Additional Collector (Land Acquisition), Gautam Budh Nagar. The amount shall be held by the Additional Collector (Land Acquisition) in the appropriate head to abide by the order which would be passed in reference.

By the order of the Court dated 6th November, 2013, the 9th respondent, who had passed the impugned order was directed to remain present in the Court. An unconditional apology has been tendered on behalf of the 9th respondent and in the circumstances, we are not inclined to pursue the proceedings against the 9th respondent any further. We, however, caution the 9th respondent to exercise greater degree of care in future."

In another judgment given by this court in Writ C No. 66218 of 2013 (Bishram Sharma Vs. State of U.P. and others) decided on 11.12.2013 same view has been taken after taking note of the judgment of this court.

Power of reference by Land Acquisition Official is certainly not only formal, acting like a post office but he has to be satisfied about existence of a dispute. Issue of entitlement or apportionment has to be there. One has to find that there is real/genuine issue/dispute or a dispute only for the sake of dispute. In the process of analysis of the existence of dispute the authority may not be able to go into the merits just to give the colour to his power to examine. The examination has to be in a bonafide manner where you are to refer two rival set of version and some evidence from either of the side upon which a finding is to be recorded then it is certainly a case of lis and one has to stay his hands to simply refer the matter to civil court who is authority/court empowered to take evidence (oral and documentary) and to deal the same.

In another judgment given by this court in case of Vishnu Pratap Singh Vs. State of U.P. And others reported in 1993 AWC (1)515 following observation was made-

"The second question is whether the Collector is bound to make a reference under Section 30 of the Act in case any prayer is made to that effect. This matter has been considered by the Supreme Court in the case of Dr. Grant (Supra). The Supreme Court observed-

"The Collector is under section 30 not enjoined to make a reference he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in a manner declared by his award.

Exercise of the power under Section 30 to refer the dispute relating to apportionment or as to the person to whom it is payable is, it is thue discretionary; and Collector may but is not bound to exercise that power"

The power to make reference under section 30 of the Act is thus discretionary. It has to be examined as to whether it was a fit case for making a reference under Section 30 of the Act."

There is another judgment of this court given in case of Sunder and another Vs. Additional Collector (Land Acquisition) and others reported in 2012(1) ADJ 238 following observation was made-

"There cannot be any dispute to the proposition that Collector has no jurisdiction to finally determine a issue . If he finds a dispute which may be referred , a reference is to be made but he is not to adjudicate himself about the contentious issues regarding title. As observed above, reference under section 30 is to be made in appropriate case by the Collector when he is satisfied that the case is fit to be referred under section 30 of the Act.

A Division Bench of this Court in which one of us (Ashok Bhushan,J) was member considered Section 30 of the Act. The Division Bench vide its judgment dated 2.5.2011 in writ petition No.14185 of 2011-Ved Prakash Vs. Addl. District Magistrate, has laid down as follows:

"In view of the proposition as laid down by the Apex Court in the aforesaid case, it is clear that there is no limitation for making an application under Section 30 of the Act, and further if any right is acquired subsequent to award also a reference can be made. However, the important distinction under Sections 18 and 30 of the Act, is that under Section 18 the Collector is bound to make a reference on a petition filed by person interested, but the Collector under Section 30, of the Act is not bound to make a reference and he may relegate a person raising dispute as to the apportionment to adjudicate the dispute in a suit. It is useful to reproduce the relevant observation in this context in paragraph 13 which is quoted below:

"Again under S.18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under S.30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award."

The reference under section 30 is not automatic nor it is to be made in a mechanical manner . The Collector has to be satisfied that there is a dispute raised by the parties which needs determination under section 30, hence he is obliged to make a reference.

As observed above, it is not obligatory in each and every case to make a reference under section 30 by the SLAO. We are satisfied that the discretion exercised by the SLAO in rejecting the objection of the petitioners and in not making a reference under section 30 cannot be said to be erroneous. "

Normally the amount of compensation payable to rightful person is not to be detained as it is his valuable right on account of the fact that he is deprived of his land which was his source of livelihood but certainly that has to go in the correct hand.

It can be also said that on determination of compensation it is first to be paid immediately then if the dispute is decided, result is to follow. Some time it may work but sometime it may create complication and therefore, one has to be cautious as involvement of huge amount is normally there. It has to be seen on the facts of each case so as to enable the claimant to get his dues and at the same time one remains within the limits of its authority.

On the facts and in view of serious dispute between the parties as appeared on bare perusal of the impugned order this Court is satisfied that only proper course for the Additional Collector was to have referred the dispute under Section 30 of the Act for decision by the Civil Court.

On perusal of the impugned order the court is satisfied that the dispute between the parties in respect to their claim is not superfluous or formal rather there is a serious dispute.

It is the Civil Court only who has competence to adjudicate the rights/claim of the parties upon which entitlement to get the compensation is to be accepted.

The exercise by the respondent authority is totally illegal, unjustified and in fact in excess of his jurisdiction.

When the writ petition was entertained this court has granted interim stay about disbursement of the amount pursuant to the order dated 3.11.2008. Thus we will have to ensure that the amount, if any, paid pursuant to the impugned order is returned back to the competent authority or to be remitted to the Civil Court, as the law provides, for the purpose of its availability to the person who is finally found to be entitled of the amount of compensation.

We, therefore, allow both petitions and set aside the impugned order dated 17.10.2008 passed by respondent no.2.

As a consequence the respondent authority is to refer the dispute with regard to the apportionment of the compensation between the parties as provided under Section 30 of the Act within shortest possible time on receipt of certified copy of this order.

We further direct the Land Acquisition officials to get the entire amount so paid to any person pursuant to the impugned order returned back or to have a bank guarantee for the entire amount for his satisfaction so as to enable the party to receive the amount immediately after final adjudication, in accordance with law.

Writ petitions are allowed in the light of the aforesaid direction.

There shall be no order as to costs.

13.12.2013

M.A.A.