Zubedaben Kejarbhai ... vs State Of Gujarat
2023 Latest Caselaw 6239 Guj

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    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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     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

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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

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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

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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

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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

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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

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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

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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

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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 /

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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

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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,

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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

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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