Smt. Anjanabai W/O Anna Thorat ... vs Dilip Baliram Khandare And Others
2023 Latest Caselaw 685 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                   WRIT PETITION NO. 5922/2019
    Anjanabai w/o Anna Thorat Vs. Dilip Baliram Khandare and others

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and Regis-
trar's orders

                                  Mr. R.S. Nagpure, Adv. for the Petitioner
                                  Mr. S.S. Alaspurkar, Adv. for Respondent Nos.1 and 2
                                  Ms. M.A. Barabde, AGP for Respondent Nos.3 and 4

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 19th JANUARY, 2023

Heard Mr. Nagpure, learned counsel for the petitioner.

2. The petition challenges the order dated 15/07/2019, passed by the respondent No.3, whereby the objection raised by the petitioner dated 08/02/2019 regarding the apportionment in respect of the compensation awarded for the acquisition of survey No.61/2, admeasuring 1.74 HR by the respondent No.3 (page 9), has been rejected. The respondent No.3 by the impugned order, has rendered a finding that the petitioner, has not placed anything on record to demonstrate that she was having right in the property in question and therefore, the objection has been rejected.

3. Mr. Nagpure, learned counsel for the petitioner / objector submits, that once an objection 2 31-wp-5922-2019.odt

is filed before the respondent No.3, by any person, claiming any right or interest in the property which is the subject matter of acquisition, the respondent No.3 then has no other choice than to refer the dispute to the authority constituted under Section 51 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (hereinafter referred to as "Act of 2013"), in view of the language of Section 64 thereof R/w Section 77(2) of the Act of 2013. He therefore, submits, that since an objection was so made dated 08/02/2017 (page 11), the respondent No.3 had no choice in the matter than to refer and by not doing so, has violated the mandate of Section 76 as well as Section 77(2) of the Act, 2013, as a result of which, the impugned order is liable to be quashed and set aside. Reliance is placed on the judgment in the case of Shrikrushna s/o Shivshankar Chambhare (Patil) and another Vs. State of Maharashtra in Writ Petition No. 6218/2022, decided on 13/12/2022 by the learned Division Bench of this Court.

3. Mr. Alaspurkar, learned counsel for the respondent Nos.1 and 2 submits that there is no such obligation upon the respondent No.3 and unless and until the respondent No.3 comes to a conclusion that in fact the dispute exists, he is not required to make a reference merely for the sake of 3 31-wp-5922-2019.odt

asking.

4. The provisions of Section 77 of the Act of 2013 being material are reproduced as under :-

77. Payment of compensation or deposit of same in Authority -

(1) On making an award under section 30, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them by depositing the amount in their bank accounts unless prevented by someone or more of the contingencies mentioned in sub-section (2). (2) If the person entitled to compensation shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Authority to which a reference under section 64 would be submitted. Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount : Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under sub-section (1) of section 64 :

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto."

5. Subsection 2 of Section 77 mandates 4 31-wp-5922-2019.odt

that if the person entitled to compensation does not consent to receive it, or if there is no person competent to alienate the land, or if there is any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation with the authority to which a Reference under Section 64 would be submitted.

6. The provisions of Section 64 of the Land Acquisition Act in case of a dispute, therefore, come into picture and in case, the Collector fails to make a reference within a period of 30 days as provided by the first proviso to Section 64(1) of the Land Acquisition Act, it is permissible for the objector to apply to the Authority as contemplated by the second proviso thereto, requesting it to direct the Collector to make the reference to it within a period of 30 days.

7. In the instant case, it is not disputed that the Award has already been passed on 29/5/2018. In the case of Shrikrushna s/o Shivshankar Chambhare (Patil) and another Vs. State of Maharashtra (spura), the learned Division Bench of this Court, considering the proposition has held as under :-

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     "6.        Having       considered       rival

submissions, we are of the view that the dispute as to apportionment of the compensation should be resolved by the authority, as provided under sections 76 and 77 of the Act of 2013. The question of title to receive the compensation can also be agitated and decided by the authority. The grievance made by Respondents that civil suit is pending and unless the rights of the parties are crystallized, the Petitioners will not be entitled to seek apportionment can be raised before the authority. The Respondent No.2 ought to have considered the provisions of the Act of 2013 and ought to have referred the dispute to the authority. However, he has rejected the objection raised by the Petitioners and passed the order dated 3rd October, 2022. The same will have to be set aside to give effect to present order and, accordingly, stands set aside."

8. The above judgment does not dilate as to what can be construed to be a dispute and what is the requirement for holding that there is a dispute.

9. The Act of 2013 also does not define what is meant by 'dispute'. However, a dispute in the normal parlance in the light of the Land Acquisition Act, 1894 has been held by the learned Division Bench of this Court in Sayed Mohamed Shah Abdul Hamid Kadri Vs. State of Maharashtra and another in Writ Petition No.778/1999, decided on 24/08/2005, as under :-

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"8. Bare perusal of the impugned award, therefore, discloses that the Land Acquisition Officer being unable to arrive at the finding about the entitlement of the petitioner as a person interested to claim the amount awarded on account of acquisition of the land and, on the claim made by the CIDCO that the land in question has already been acquired for the Forest Department, proceeded to pass the order for reference under Section 30 and directed that the amount be deposited in Reference Court in such proceedings. Section 30 of the Land Acquisition Act provides that 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. Obviously, in cases where dispute arises before the Land Acquisition Officer regarding the apportionment of the compensation fixed by him in relation to the land sought to be acquired, certainly the matter will have to be referred to the Reference Court in terms of Section 30. However, it is to be noted that Section 30 specifically speaks of 'if any dispute arises as to the apportionment of the compensation'. In other words, there has to be a dispute arising before the Land Acquisition Officer before he can exercise the powers under Section 30 and dispute should be in relation to the apportionment of the compensation. The apportionment of the compensation spoken of under Section 30 necessarily relates to the apportionment between the persons interested. Under Section 11(1), the Collector consequent to the replies received to the notices under 7 31-wp-5922-2019.odt

Section 9 of the said Act has to make an award in relation to the true area of the land, compensation of which, in his opinion, should be allowed for the land and the apportionment of the compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. In other words, while deciding the exact area which is the subject matter of acquisition and ascertaining market value of such land in terms of Sections 23 and 24 of the said Act, the Land Acquisition Officer has necessarily to decide about the apportionment of the compensation to all the persons known or believed to be interested in such land. The very fact that the Land Acquisition Officer is expected to decide about apportionment of the compensation among the persons interested, disclose the power of the Land Acquisition Officer to look into the rights of the interested persons in relation to the land sought to be acquired and, based on such rights, to decide about the apportionment of the compensation. In order to ascertain rights of the persons interested for the purpose of apportionment of compensation, obviously, the Land Acquisition Officer will have to look into the material to be produced by the person interested in support of their claim as the person interested and their share in the land acquired. Needless to say that apportionment of compensation to the persons interested would not be possible without application of mind by the Land Acquisition Officer to the claim putforth by the interested persons and substantiated by them with necessary materials in that regard. From this, it also follows that when 8 31-wp-5922-2019.odt

any person interested wants to raise a dispute as regards the entitlement of the compensation to himself or disentitlement of compensation to any other person interested in the matter, such person has necessarily to substantiate his claim or dispute by necessary material or evidence in support of such objection. It is not a mere objection for the sake of objection that would empower the Land Acquisition Officer to blindly exercise powers under Section 30. In order to exercise powers under Section 30, the Land Acquisition Officer will have to disclose the application of mind to the dispute sought to be raised and the necessity of adjudication of that dispute by the Court of competent jurisdiction and, therefore, the matter being needed to be referred to the Reference Court in exercise of powers under Section 30. It cannot be done in the manner of postman's job to deliver letters but it must necessarily disclose application of mind by the Land Acquisition Officer in the award itself that there is a need for reference of the matter to the Reference Court under Section

30."

10. Section 77 of the Act of 2013, also uses the phrase "or if there be any dispute as to the title to receive the compensation or as to the apportionment of it". This language therefore would indicate that the job of the Land Acquisition Officer is not that of a postman, but entails an application of mind to the material placed before him, to determine whether there indeed exists a dispute which requires to be referred. The Land Acquisition Officer in cases where he finds that the objection raised is spurious, 9 31-wp-5922-2019.odt

moonshine, or absolutely without any basis, can always hold so and refuse to refer the dispute in light of the specific language under Section 77(2) which grants him the power to refer, "If there be any dispute", which requires him to apply his mind and at least prima facie hold a dispute exists or not.

11. It is thus apparent that in order to determine whether there is a dispute or not, the mere filing of an objection or an application, is not sufficient and such a claim, which intends to raise a dispute, putforth by the interested person has to be substantiated by them with necessary material in that regard in support of such objection. It is not a mere objection for the sake of objection that would empower the respondent No. 3 / Land Acquisition Officer to blindly exercise powers under Sections 76 and 77(2) of the Act as that would result in spurious claims being entertained without any rhyme or reason, thereby defeating the claims of genuine persons.

12. In the instant case, inspite of the fact that, an opportunity was available under the second proviso to Section 64(1) of the Act of 2013, the petitioner has not taken any steps in that regard, within the time frame as enumerated in the second proviso to Section 64(i) of the Act of 2013.

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13. That apart, the objection dated 08/02/2019 (page 11), is not accompanied by any document or material, to indicate the veracity or authenticity of the claim raised. The compensation already stood disbursed on 26/70/2019 in the account of the respondent consequent to the passing of the impugned order, which considers the execution of the Will dated 17/11/1998, made by the deceased Baliram Shankarrao Khandare, bequeathing the property in question to the respondent Nos. 1 and 2. That apart, the petitioner it is now stated to have already filed Regular Civil Suit No.29/2019 before the Civil Court, challenging the Will dated 17/11/1998.

14. The time limit for invoking the second proviso to Section 64(1) of the Act 2013 has also long lapsed, considering which, I do not see any reason to interfere in the impugned order. The petition is therefore, dismissed. No costs.

15. However, needless to say, that the rights and entitlement of the parties shall always be subject to the final result in Regular Civil Suit No.29/2019.

Digitally signed by:MILIND
P DESHPANDE
                                                                    JUDGE
Signing Date:23.01.2023
16:23        MP Deshpande