Dnyaneshwar S/O Sheku Tarde vs State Of Maharashtra And Ors.
2002 Latest Caselaw 790 Bom

JUDGMENT

B.H. Marlapalle, J.

1. Rule.

2. The respondents waive service.

3. Rule is taken up for final hearing forthwith.

4. The petitioner is the resident of village Palashi in Taluka Kannad of district Aurangabad. He is an agriculturist. He claims that he had purchased agricultural land admeasuring 37 r located in Gut No. 281 of said village from Uttamrao Bhaurao Thote and Ramrao Sarjerao Thote by a sale-deed dated 1-6-1979. The Government of Maharashtra sought to acquire some land from village Palashi for Anjana Palashi Medium Project and therefore, notification under

Section 4 of the Land Acquisition Act came to be issued on 10-10-1993. Such a notice was also served on the petitioner in respect of the agricultural land in Gut No. 281 admeasuring 37 r. The land acquisition proceedings were concluded in an Award passed on 17-6-1997. It appears that immediately thereafter the petitioner approached the Collector, Aurangabad and submitted a representation claiming the amount of compensation as owner of the said land. One such representation was also submitted again on 20-1-1998 which is available in the file of the Land Acquisition Officer and produced before us today. In the said representation the petitioner claimed to be the owner of the land in question and requested the Collector to pay compensation amount to him. No action was taken on these representations. On the other hand, respondent No. 8 was paid compensation in respect of 7 r land on 7-3-1998 amounting to Rs. 17,546/-, whereas, respondents No. 5 to 7 were paid compensation amount to the tune of Rs. 73,036/- on 30-3-1998 in respect of 30 r land from Gut No. 281.

5. The petitioner, therefore, approached us on 5-8-1998 and moved this petition. Though notice before admission was issued on 27-3-1999, affidavit in reply came to be filed by the Special Land Acquisition Officer, Jayakwadi Project No. 1, Aurangabad, for the first time, on 2-8-2002. It is contended in the affidavit in reply that the joint measurement conducted on 31-3-1993 indicated that Ganpat Gangaram Thote was the Kabjedar (possessor) of the land to the extent of 7 r land from Gut No. 281 and balance of the land from said gut number was in possession of respondents No. 5 to 7. As per the said affidavit, the petitioner was in possession of land to the extent of 31 r from Gut No. 285. The affidavit admits that the petitioner was issued a notice under Section 4 of the Land Acquisition Act, 1894, in respect of 37 r land located in Gut No. 285 along with Uttam Sonawane. The said joint measurement report was also subsequently confirmed in the spot inspection of the land carried out by the Land Acquisition Officer, Circle Inspector and the Sectional Engineer along with Talathi and Panchas between 5th to 8th July, 1994. The affidavit also refers to Regular Civil Suit No. 33 of 1994 filed by the present respondents No. 5 to 8 against the petitioner and two others and the averments made by the plaintiffs have been referred to. It was contended in the said civil suit that the petitioner had purchased the land from gut No. 285 and not from gut No. 281. However, this civil suit was not adjudicated and was dismissed in default for the reasons attributable to the plaintiffs i.e. present respondent No. 5 to 8. When the petitioner approached the Collector with his representation dated 21-9-1998 he had submitted a copy of the order passed by the Civil Court in Regular Civil Suit No. 33 of 1994.

6. The affidavit further states that the amount in respect of 37 r land in gut No. 281 has been paid to respondent Nos. 5 to 8 and therefore, the petitioner could not claim the said amount as he had purchased the land from gut No. 285 and not from gut No. 281.

7. This reasoning given by the Special Land Acquisition Officer in the affidavit in reply is not supported by the record. We have noticed from the file that the Award dated 17-6-1997 in respect of 7 r land from gut No. 281 was passed in favour of Ganpat and Dnyaneshwar, whereas, for balance of 30 r land

from the said gut number Award was passed in the name of three brothers i.e. respondents No. 5 to 7. It is noticed that in Statement "E" to the Award an entry has been made by the Special Land Acquisition Officer to the effect that the names of respondents No. 5 to 7 were incorporated in place of the petitioner's name on the basis of report of possession and thus, the amount was paid to them. This correction is undoubtedly made without following the procedure as laid down in Section 13A of the Land Acquisition Act. Admittedly no notice was issued to the petitioner at any time before carrying out the said correction in favour of respondents No. 5 to 7. The said Award has also shown the petitioner's name in respect of 31 r land from gut No. 285 along with Uttam Sarjerao Sonawane. It is an admitted position that the petitioner has not been paid any penny even in respect of the said land in gut No. 285. Thus, the petitioner has been deprived of the compensation amount in respect of the lands in gut Nos. 281 and 285.

7-A. When the special statute has prescribed a procedure for carrying out any correction of clerical errors or arithmetical mistakes, the said procedure is mandatory and it was necessary for the Land Acquisition Officer to issue notice to the petitioner before carrying out any correction in the Award. When the statute has given powers to the Special Land Acquisition Officer acting as the Collector to do certain things in a particular manner they are required to be done in that manner alone and therefore, we have noticed in the instant case that the statutory procedure has been circumvented and the petitioner has been deprived of his right to compensation thereby violating the guarantee in Article 300A of the Constitution of India.

8. Section 30 of the Land Acquisition Act mandates the Collector to refer any dispute that may arise regarding apportionment or any part thereof in respect of compensation between persons to whom compensation or any part thereof is payable. The petitioner's representation received by the Collector or the Land Acquisition Officer on 21-1-1998 clearly indicated that there was a dispute regarding entitlement of the persons to receive compensation in respect of acquired land from gut No. 281. The Collector failed to perform this statutory duty as mandated under Section 30 of the Act.

9. The learned Advocate for respondents No. 5 to 9 has invited our attention to the provisions of Section 18 of the Act and contended that the only remedy for the petitioner was to make a reference under the said section. We are not impressed by these submissions. The reference contemplated under Section 18 of the Act is at the instance of a person who is interested in the compensation amount and has not accepted the said amount or amount is received under protest. Even such an application is required to be submitted to the Collector and on his own no claimant can approach the Court. We have no doubt in our mind that the petitioner invoked the right remedy under Section 30 of the Act by submitting an application on 21-1-1998 and claimed the amount of compensation. If the Collector had any doubts regarding the title of the petitioner vis-a-vis other claimants based on any document or record available before him as was in the instant case, it was necessary that the amount of compensation was deposited in the Court and the dispute ought to have been referred to the civil court.

9-A. The respondents No. 5 to 9 have received the amount and enjoyed the same for last about four years and that by itself cannot be a reason for us to deprive the petitioner of his claim to receive the compensation. The title to the land in Gut Nos. 281 and 285 is required to be examined by the competent court by recording evidence and the same cannot be adjudicated in the present petition filed under Article 226 of the Constitution of India.

10. In the result, we allow the petition and direct the respondents No. 3 and 4 to refer the petitioner's application dated 21-1-1998 under Section 30 of the Land Acquisition Act, 1894, to the District Court within a period of four weeks from today and deposit an amount of Rs. 1,00,000/- in the said Court within the above stipulated period. The entitlement of the petitioner vis-a-vis the land purchased by him as well as the claim of respondents No. 5 to 9 would be gone into by the District Court and it will be subject to the final decision of the said court.

11. Rule is made absolute in terms of the above directions. Costs is quantified at Rs. 2,000/-. The costs to be remitted within two weeks. We direct the Collector, Aurangabad, to recover the amount of costs from the salary of the Officer who is responsible for disbursement of compensation amount to respondents No. 5 to 9.

12. We clarify that this order will not come in the way of respondents No. 3 and 4 to cause recovery of compensation amount from respondents No. 5 to 8 or any of them.