Mohandevi W/O Sohanlal Jhawar ... vs Special Land Acquisition Officer ...
2002 Latest Caselaw 624 Bom

JUDGMENT

D.Y. Chandrachud, J.

1. In these proceedings the applicants have impugned the correctness of an order dated 4th August, 1987, of the Special Land Acquisition Officer (General), Nagpur, making a reference under Section 18 of the Land Acquisition Act, 1894, on an application by the fourth respondent.

2. The applicants are the legal representatives of one Maniklal Jhawar, who expired on 9th July, 1986. The maternal uncle of the deceased Maniklal was one Sundarlal Daga, whose son is the 4th respondent to these proceedings. The case of the applicants is that until 1973 Maniklal stayed at Ahmednagar, after which he shifted to Nagpur and worked thereafter with his maternal uncle, the father of the 4th respondent. The applicants claim that the agricultural land in question admeasuring 13.19 hectors, which has been subsequently acquired under the Land Acquisition Act, 1894, was purchased by the deceased under a registered deed of conveyance on 1st November 1974. The land was sought to be acquired in pursuance of Notification under Section 4 dated 13th December 1982 and a declaration under Section 6 of the Land Acquisition Act issued on 3rd March, 1983. On 16th September 1984 Maniklal executed an irrevocable Power of Attorney in favour of the 4th respondent inter alia authorizing him to pursue the land acquisition proceedings and to receive compensation in respect thereof. According to the applicants, the Power of Attorney came to be revoked on 14th January 1985 and Maniklal informed the Land Acquisition Officer of the revocation of the power on 15th February, 1985. An Award under the Land Acquisition Act, 1894, came to be made on 30th April, 1986. On 24th May, 1986, the 4th respondent made an application for a reference under Section 18 of the Act, claiming ownership in respect of the lands, which had been acquired. The case of the 4th respondent was that the property had been purchased by his father benami in the name of Maniklal Jhawar. It is common ground between the learned counsel that Maniklal was impleaded as the third respondent to the application made before the Collector, under Section 18. On 9th July. 1986, a suit was instituted by the 4th respondent being Regular Civil Suit No. 336 of 1986, before the Civil Court against the Land Acquisition Officer and Maniklal, for a declaration and injunction. The basis of the suit was the claim of the 4th respondent, that the property had been purchased by his father benami in the name of Maniklal Jhawar. Maniklal expired on 9th December, 1986. The suit has been dismissed for non-prosecution in the year 1987.

3. Though Maniklal died on 9th July, 1986, it is common ground that the applicants here who are his legal representatives, were not brought on the record in the proceedings under Section 18 before the Collector. The learned counsel appearing on behalf of respondent no. 4 states before the Court that an application for substitution that had been made before the Collector remained to be disposed of. Therefore, there is no dispute about the fact that the applicants were not brought on record before the Collector in the proceedings under Section 18.

4. By the impugned order dated 4th August, 1987, the Collector made a reference to the District Court, in pursuance of the provisions of Section 18 of the Land Acquisition Act, 1894. The order passed by the Collector is called in question in these proceedings. The provisions of Sub-section (3) of Section 18 lay down that any order made by the Collector on an application under the section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, 1908.

5. The learned counsel appearing on behalf of the applicants has urged that under Section 18 of the Act, the Collector is duty bound to inquire into the question as to whether the application, which is moved before him satisfies the requirements of Sub-section (1) of that section. In the present case, it was urged that there is absolutely no application of mind by the Collector to the question as to whether the 4th respondent was a person interested within the meaning of Section 18(1) and the order has been passed by the Collector mechanically without application of mind. A grievance is made of the fact that the applicants were not brought on record of the proceedings before the Collector under section 18 of the Act, though Maniklal through whom the applicants claim was made a party to those proceedings. Moreover, it was urged that in Civil Suit No. 336 of 1986, the question of title had been raised and hence the reference by the Collector was not maintainable. Finally, it was urged that the dispute as to title could have been referred under Section 30 of the Land Acquisition Act, 1894. Section 18(1) of the Land Acquisition Act, 1894 provides as follows :--

S. 18(1) "Any person interested who has not accepted the award (or the amendment) thereof may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement, of the land, the amount of the compensation the persons to whom it is payable or the apportionment of the compensation among the persons interested."

The proviso to Sub-section (2) lays down the period of limitation for making an application under Sub-section (1) of Section 18.

6. In Mohammed Hasnuddin v. The State of Maharashtra, , the Supreme Court held that the word "required" in Section 18 of the Act, implies compulsion; it carries it with the idea that the written application makes it incumbent on the Collector to make a reference. The Supreme Court held that the Collector is required to make a reference under Section 18, on the fulfilment of certain conditions, these being that (i) there must be a written application by a person interested who has not accepted the Award; (ii) the nature of the objections, which may be taken must be those as provided under the law; and (iii) the application for making a reference has to be made within the time, which is prescribed. The Power of the Collector to make a reference under Section 18 is thus circumscribed by the conditions laid down therein.

7. In Mohammed Husnuddin's case (supra), the Supreme Court considered the conflicting decisions of several High Courts as regards the power of the Court to which a reference is made by the Collector under Section 18 of the Act. In one line of decisions, it had been held that the requirements of Section 18 are matters of substance and their observance is a condition precedent to the Collector's power to make a reference. Consequently, the Court to which a reference is made is not only entitled to but is bound to satisfy itself on whether the conditions laid down in Section 18 have been complied with. This view was inter alia taken by Chandavarkar, J. in the decision in re Land Acquisition Act (1906) ILR 30 Bom. 275. The contrary view, which was taken by a Full Bench of the Allahabad High Court in State of U.P. v. Abdul Karim, , was that once a reference is made by the Collector, the Court to which a reference is made acquires jurisdiction to hear the reference, and the Court cannot refuse to hear the reference even if it was made on a time barred application. The Supreme Court approved the view, which was taken by Chandavarkar, J. in ILR 30 Bom. 275, and overruled the latter view. Mr. Justice A. P. Sen speaking for a Bench of three learned Judges of the Supreme Court held that the Court being clothed with a Special jurisdiction, it is its duty to see that the reference made it to by the Collector under Section 18 complies with the conditions laid down therein, so as to give the Court jurisdiction to hear the reference. Consequently, it is the duty of the Court to inquire into whether the statutory conditions laid down in Section 18 have been complied with and it is not debarred from satisfying itself that the reference which, it is called upon to hear is a valid reference.

8. Under Section 18(1) any person interested, who has not accepted the award may move the Collector by a written application for making a reference to the Court. The reference which is contemplated by Sub-section (1) of Section 18 is on any objection which the applicant has to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. The expression "person interested" is defined by Section 3(b) of the Act to include all the persons claiming an interest in the compensation to be made on account of acquisition of the land under the Act. Moreover, under Section 3(b) a person who is interested in an easement affecting the land is deemed to be interested in the land. Therefore, for the purpose of Section 18(1) a person interested is a person, who falls within the meaning of the expression as defined in Section 3(b) of the Act. The Collector cannot obviously discharge the adjudicatory function of conclusively deciding a question of title or determine the apportionment of compensation among persons interested. That function has to be discharged by the Court to which a reference is made by the Collector under Sub-section (1) of Section 18. Apart from Section 18(1), a reference may be made to Section 30 of the Act, which provides thus :

Section 30 "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 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."

9. In the present case, an application for a reference was made by the 4th respondent, according to whom the property had been purchased by his father benami in the name of the predecessor in interest of the applicants. Against the order which was passed by the Special Land Acquisition Officer on 4th August, 1987 this Civil Revision Application came to be preferred. On 21st, August, 1991, a learned Single Judge of this Court allowed the Revision Application and set aside the order passed by the Competent. Authority. The order passed by this Court has been set aside in Appeal by the Supreme Court on 8th March 1995. The order passed by the Supreme Court refers to the circumstance that this Court, while deciding the Civil Revision Application had followed the judgment of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare, 1989 Mh.L.J. 210 (SC) = 7959 (J) SCR 621. In view of the subsequent judgment of the Supreme Court in R. Rajagopal Reddy (dead) by Lrs. v. Padmini Chandrasekharan (dead) by Lrs., 1995(1) Mh.L.J. (S.C.) 544 = 1995(1) Scale 692, the order passed by this Court was set aside and the matter was remanded back for fresh consideration.

10. There is merit in the grievance of the applicants that the Collector ought not to have disposed of the application under Section 18 of the Act, without bringing on record the applicants as legal representatives of the deceased Maniklal. Maniklal, as noted earlier, was a party to the proceedings under section 18 of the Act. An application for substitution was in fact made before the Collector under Section 18, which remained to be disposed of before the order making the reference was passed. There is a serious dispute between two sets of claimants. The applicants on the one hand claim that the right, title and interest in the property, which came to be acquired vested in deceased Maniklal through whom the applicants claim. On the other hand the 4th respondent, who claims that the property was purchased by his father benami in the name of Maniklal. Having regard to the scheme of Sections 18 and 30 of the Land Acquisition Act 1894, it would be appropriate for the reference Court to determine the dispute between these two sets of conflicting claimants. Under Sub-section (1) of Section 18, it is for the reference Court to determine the person to whom the compensation is payable or the apportionment thereof. Similarly, under Section 30, a reference is provided in a situation where any dispute arises inter alia in regard to the persons to whom compensation is payable or as regards the apportionment thereof. The attention of the Court is drawn to a decided recent case, where the Supreme Court had in a similar situation held that it would be appropriate for the High Court to direct the Land Acquisition Officer to make a reference under Section 18 read with Section 30 of the Land Acquisition Act, 1894, R. Rajagopal Reddy (dead) by Lrs. v. Padmini Chandrasekharan (dead) by Lrs.. Both the learned counsel have fairly agreed that this would be the appropriate course to be followed in the facts and circumstances of the present case also. At the same time it would be necessary to direct that the applicants herein ought to have been brought on record as legal representatives of deceased Maniklal and in that capacity, shall be parties to the reference, which has been made by the Special Land Acquisition Officer to the Court under Section 18 of the Land Acquisition Act, 1894. In the circumstances, the order of reference, which has been made by the Special Land Acquisition Officer on 18th August, 1987 is with the consent of the learned counsel of the parties confirmed, save and accept for the modification that the Special Land Acquisition Officer (General) Nagpur, shall make a reference both in terms of Section 18 as well as Section 30 of the Land Acquisition Act, 1894, and the applicant as persons, who claim to be legal heirs of deceased Maniklal shall be impleaded as parties to the reference under Sections 18 and 30, before the Court. All the rights and contentions of the parties are however, expressly kept open in deciding the question as to who would be entitled to receive the compensation payable under the Land Acquisition Act, 1894 or in regard to the apportionment if any, thereof.

11. On the request of the learned counsel for the Applicants, it is clarified that the objections which the applicants have to the maintainability of the reference under Section 18 are also kept open. The Special Land Acquisition Officer shall make a reference in terms of Section 30 in addition to the order of a reference which has already been passed under Section 18 within a period of four weeks, from today. The reference Court thereupon shall decide the reference within a period of one year. The Civil Revision Application is disposed of in these terms.