1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 05 TH DAY OF FEBRUARY 2014 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No.8280 OF 2013 (LA-KIADB) BETWEEN: Mrs. Mary John, Aged about 71 years, Daughter of Late K.P.Paul, Wife of Late Dr. John Thomas, Residing at Flat No.004, Hebron Apartments, No.57, Benson Cross Road, Benson Town, Bangalore – 560 046. …PETITIONER (By Shri. P.N. Rajeswara, Advocate ) AND: 1. The State of Karnataka Represented by its Principal Secretary, Department of Industries, M.S.Building, Bangalore – 560 001.
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1
® IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH
DAY OF FEBRUARY 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.8280 OF 2013 (LA-KIADB)
BETWEEN:
Mrs. Mary John,
Aged about 71 years,
Daughter of Late K.P.Paul,
Wife of Late Dr. John Thomas,
Residing at Flat No.004,
Hebron Apartments,
No.57, Benson Cross Road,
Benson Town,
Bangalore – 560 046.
…PETITIONER
(By Shri. P.N. Rajeswara, Advocate )
AND:
1. The State of Karnataka
Represented by its
Principal Secretary,
Department of Industries,
M.S.Building,
Bangalore – 560 001.
2
2. The Karnataka Industrial
Areas Development Board,
No.14/3, 2nd
Floor,
R.P.Building,
Nrupathunga Road,
Bangalore – 560 001,
Represented by its Executive Officer
and Executive Member.
3. The Special Deputy Commissioner,
K.I.A.D.B.,
No.14/3, 2nd
Floor,
R.P.Building,
Nrupathunga Road,
Bangalore – 560 001.
4. The Special Land Acquisition Officer,
(Bangalore International Airport),
Nrupathunga Road,
Bangalore – 560 001.
…RESPONDENTS
(By Shri. Basavaraj V Sabarad, Advocate for Respondent Nos. 2
to 4
Shri. D. Nagaraj, Additional Government Advocate for
Respondent No.1)
*****
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to direct the respondent Authorities
to frame an award as contemplated under Section 29(3) of the
Karnataka Industrial Areas Development Act, 1966 by
determining the market value as on the date of this petition in
respect of 4 acres of land in Sy.No.74/302 of Bandi Kodigenahalli
Village, Jala Hobli, Yelhanka Taluk, Bangalore District, held by
3
the petitioner and acquired as per final notification dated 7.5.2007
vide Annexure-A.
This petition, having been heard and reserved on
21.01.2014 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
The petitioner claims that she was the owner of 4 acres of
land bearing Sy.no.74/302 of Bandi Kodigenahalli. The same
having been the subject matter of acquisition proceedings under
the provisions of the Karnataka Industrial Areas Development
Act, 1966 (Hereinafter referred to as the ‘KIAD Act’, for brevity,
the petitioner had unsuccessfully challenged those proceedings in
WP 12931-32/2011. It is alleged that the same was
unauthorizedly withdrawn by the counsel engaged by her in that
case. It is also the petitioner’s case that to her shock, she had also
learnt that the compensation amount due to her in respect of the
above land had been drawn by some other, impersonating her. In
respect of the said incident, a criminal case is said to be pending.
It is the petitioner’s case that a large amount of Rs.1.24 Crore and
4
Rs.44 Lakh had been allowed to be drawn in her name, with the
active connivance of the concerned officials.
The petitioner is hence before this court seeking a direction
to the respondents to pay the compensation amount justly due to
her.
2. On the other hand, it is contended on behalf of the
Karnataka Industrial Areas Development Board (KIADB) that the
acquisition proceedings in question were in respect of an extent of
450.05 acres of land acquired in Bandi Kodigenahalli, Yelehanka
Taluk, Bangalore North. A writ petition filed earlier by the
petitioner, as admitted, did not contain any complaint of the
nature now stated. The same was withdrawn. It is stated that one
Mary John is said to have lodged a complaint with the
Lokayuktha, to state that compensation payable in respect of her
land measuring 4 acres has been paid to an impostor and that the
said complaint is the subject matter of investigation. In the light
5
of the admitted payment of compensation, the present petition is
not maintainable.
It is further stated that the Special Deputy Commissioner,
Bangalore District, has passed an Order in Case
No.RRT/2/CR/305-A/95-96 dated 1.4.2009, in a case registered
under Section 136(3) of the Karnataka Land Revenue Act, 1964
(Hereinafter referred to as the ‘KLR Act’, for brevity) ordering
deletion of the names of Byranna, son of Kempanna and Mary
John, wife of K.P.Paul, in respect of Survey No.74/302 (8 acres)
of Bandi Kodigenahalli Village. It was also ordered to continue
the name of the Government in the records in respect of this land,
holding that the aforesaid persons were claiming under bogus
grants. The Special Deputy Commissioner had also ordered for
recovery of the compensation amounts already paid. The said
order is not questioned by anyone including the petitioner. It is
contended that in view of the orders passed by the Competent
Authority under Section 136(3) of KLR Act, the claim of the
6
petitioner is false and untenable. Hence, the question of passing
an award, as requested in the writ petition, does not arise.
It is further contended that the Registrar, Lokayukta, had
sought for a Report in this regard and the Land Acquisition
Officer (LAO) has already submitted a Report on 31.3.2010. And
that steps have also been initiated for recovery of the amount from
the recipients of the compensation in respect of Survey
No.74/302, to an extent of 8 acres, namely, Shri. Byranna, son of
Kempanna and Smt.Mary John, wife of K.P.Paul, that is the
petitioner herein. The petitioner, instead of complying with the
requirements of the notice, has filed this writ petition and hence
seeks dismissal of the same.
It is further pointed out that the petitioner had filed a writ
petition before this court in WP 15030/2009, questioning the
Order dated 1.4.2009 passed under Section 136(3) of the KLR
Act. The said petition having been dismissed, the petitioner has
no subsisting right to file the present petition. The fact of having
7
approached this court earlier is deliberately suppressed and hence,
the petitioner is not entitled to any relief in this petition.
3. The petitioner has filed a rejoinder to meet the
contentions of the respondent. The petitioner has sought to trace
her title to the property, apart from furnishing the sequence of
events in so far as the pending criminal proceedings are
concerned. It is contended that if it is necessary to determine the
petitioner’s title to the property in order to accept her claim for
compensation, it would be necessary that there be an award and
the matter referred to the Civil court as required under Section
29(3) of the KIAD Act. The petitioner, in any event, cannot be
denied her right to claim the compensation, when it is evident that
the amount has been admittedly paid to an impostor.
While it is true that the compensation payable should reach
the true owner of the land and if by mistake or fraudulent design,
it has been paid to the wrong person, it ought not to deprive the
true owner of the just benefit. On the establishment of the
8
identity of the true owner, he need not await the recovery of the
amount from the person, who may have illegally received it.
The point for consideration in the admitted circumstances,
in the present case on hand, however, is that the petitioner’s claim
to the land is now under a cloud, would it then be possible to have
the same determined on a reference to the civil court under
Section 30 of the LA Act ?
To answer the question, we may first note the tenor or
Sections 30 and 31 of the LA Act, which are extracted
hereunder :-
“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.
31. Payment of compensation or deposit of
same in Court.-
9
(1) On making an award under section 11,
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 unless prevented by some
one or more of the contingencies mentioned in the
next sub- section.
(2) If they 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 Court to which a reference
under section 18 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 also that no person who has
received the amount otherwise than under protest
shall be entitled to make any application under
section 18: 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.
10
(3) Notwithstanding anything in this
section the Collector may, with the sanction of the[
appropriate Government] instead of awarding a
money compensation in respect of any land, make
any arrangement with a person having a limited
interest in such land, either by the grant of other
lands in exchange, the remission of land- revenue on
other lands held under the same title, or in such
other way as may be equitable having regard to the
interests of the parties concerned.
(4) Nothing in the last foregoing sub-
section shall be construed to interfere with or limit
the power of the Collector to enter into any
arrangement with any person interested in the land
and competent to contract in respect thereof.”
Assuming that the matter is referred to the civil court for
determination of the dispute as to the title of the petitioner, it
would be possible for that court to examine the title deed, if any,
under which the petitioner claims as against the rival title set up
by any other and to decide in favour of one or the other. But if it
is a case where the claimant is required to establish title itself, the
11
proceedings cannot be allowed to take on the colour of a suit for
declaration of title as against the State Government, and especially
if it involves the claims of others, who are not parties before the
Land Acquisition Officer.
In the instant case, the writ petition filed by the present
petitioner in WP 15030/2009 and connected petitions involved
several other parties. The said petition were disposed of while
negating the petitioner’s title thus :
“20. While liberty is reserved to the State
Government and revenue functionaries for
taking such action as is warranted in
accordance with law, the impugned order dated
1.4.2009 passed by the Special Deputy
Commissioner is quashed by issue of a writ of
certiorari. It is made clear that it does not
confer any title on the writ petitioner much less
the land which is subject matter of proceedings
before the Special Deputy Commissioner and not
only the writ petitioner is declined of the land in
question as the government is the owner of the
land, the present proceedings by itself cannot
12
bestow such ownership on the writ petitioner
and even if the question of ownership arises, it
should be resolved before the Civil Court. It is
open to the State and revenue officials to defend
the action taken if any or to contest the claim of
the plaintiff on the material available before the
Court and in accordance with law. It is needless
to state that when the matter goes either before
the revenue official or before the Civil Court, the
statutory provisions governing the respective
proceedings obviously bind the parties and there
cannot be any binding either on the writ
petitioner or respondents - private parties or the
State.”
The civil court would hardly be in a position to find the title
of the petitioner in view of the above observations. The petitioner
is thus left with little alternative, but to establish her title by
recourse to independent proceedings against the State and others,
if the law so permits.
The learned counsel for the petitioner, however, has placed
reliance on several authorities to insist that the petitioner shall not
13
be driven to file an independent suit and the question of her title
could be resolved in the reference.
4. The several authorities cited would not advance the case
of the petitioner, as is elaborated hereunder :
a. In the case of Secretary, Cantonment Committee,
Barrackpore v. Satish Chandra Sen, AIR 1931 Privy Council 1:
The appeal arose out of certain land acquisition proceedings. The
Government notified for acquisition a plot comprising some 5¼
bighas of land with a house upon it situated at Barrackpore
Cantonment. The respondent was in possession of the same. The
Collector valued the buildings and computed the statutory
addition for compulsory acquisition he awarded to the respondent
and this part of his award was not in dispute. The Collector
valued the land separately, but refused to award any part of this to
the respondent on the ground that the land being cantonment land,
was the property of the Government. The respondent claimed a
reference in the ordinary course. The matter coming before the
14
Special Land Acquisition Judge, it was held that the respondent
was entitled to the value of the land also and a decree came to be
passed in his favour. The State appealed to the High Court, but
the appeal was dismissed, and the matter was before the Privy
Council.
It was held thus:
“ The question seems to have been dealt with in
India as if the matter were one of apportionment between
two contending claimants, the sole criterion being which
of the two had made out the better claim to a particular
part of the compensation. Their Lordships however have
no doubt that, when Government are acquiring immovable
property of a public purpose under Act 1 of 1894, it is for
the person claiming compensation to establish his title to
it affirmatively.
The difficulty in the present case arises mainly
from the fact that the acquired property is admittedly
within the Barrackpore Cantonment, and the tenure of
such property is in many cases of a somewhat anomalous
character. It seems clear that much, at all events, of the
land comprised in this cantonment, and probably in other
cantonments in different parts of India, was originally
acquired by Government for military purposes, but that
15
private individuals were allowed to erect houses upon
various plots.”
After addressing the manner in which the respondent was
asserting his claim, it was held thus :
“Their Lordships hold that the fair inference
from these facts, taken in connection with the rules of
1836, is that much, and possibly most, of the land in this
cantonment was and is the property of Government; that
houses were erected upon it by the licence of
Government, the buildings being recognized as the
property of the persons by whom they were erected, and
the land remaining in the ownership of Government, but
that they may nevertheless have been within the
cantonment limits some land which was never acquired
by Government, and of which the ownership was always
in private hands.
If it lay upon the appellant to prove the
acquisition of the particular plot which is the subject of
this appeal, there can be no doubt that he has failed to
do so. Both Courts in India have come to this
conclusion, and, considering that this disposes of
Government’s claim to the land, they have, as their
16
Lordships think, assumed that it must be the property of
the respondent. Their Lordships are unable to concur in
this assumption. In their opinion the respondent, in
order to succeed in his claim to compensation for the
land, must prove his title to it in the ordinary way. The
plot in question may have been privately owned, and
may have passed from such owners to the respondent,
but there is in their Lordships’ opinion no ground for
assuming this: it must be a matter of proof by the
respondent, and it is upon this that the respondent’s
claim to the compensation money must stand or fall.
The title vouched by the respondent is remarkable
for the meagerness of its written record. There is a
mortgage dated in 1889 which covers a somewhat
indeterminate fraction of the property. This is
implemented by a certificate of purchase by the
respondent of the same fraction at a Court sale in
January 1899, presumably under a decree passed on the
mortgage. Then there is a second sale certificate of
August 1899, under which one Jogesh Chandra Sen,
who may have been a coparcener of the respondent,
purchased another fraction of the property, and a third
sale certificate under which the respondent purchased
the interest of his mortgagor in apparently the larger
part of the property. It is impossible to make out from
17
these documents any title at all to the whole of the 5¼
bighas which the Government has now acquired, but this
does not appear to have been noticed in the Indian
Courts, and their Lordships do not desire to found their
judgment in any way upon this deficiency. In addition to
these documents there is the deposition of the
respondent, who says that he has been in possession
since 1900, but has no title-deeds, and had never seen
any of prior date to his mortgage. It is said that the
recitals in this deed carry back the possession to 1871,
but their Lordships doubt if these recitals are evidence
as against the appellant : see per Lord Buckmaster in
Banga Chandra Dhur v. Jagat Kishore (1) (at p. 254 of
43 I.A). It is admitted that the sale certificates passed
nothing but the right, title and interest of the judgment-
debtor, whatever it was, and the mortgage without
anterior title-deeds is of no more determinate value.
Their Lordships think therefore that the title of
the respondent must be taken to be a purely possessory
one and whether dating from 1900 or from 1871 seems
to be immaterial as it is clear from the map referred to
above that the property had been included in the
cantonment, at all events, from 1851.
18
No Government assessment has ever been paid by
the respondent, nor apparently has the land ever been
assessed. No evidence was offered that it was lakeraj
land and so exempted from assessment, though this
appears to have been the respondents contention before
the Special Judge. Nor is there any suggestion that the
land has been entered in the land registers as private
property, though under the provisions of Part 4, Sections
38 to 44, Bengal Land Registration Act 7 of 1876, such
registration is compulsory. Their Lordships would have
expected that the respondent, who is an attorney, when
taking a mortgage of the property in 1889 would have
made some inquiry as to registration, and would, if he
believed that the land was the property of his mortgagor,
have taken steps to register his mortgage, as he was
entitled to do under S. 44 of the Act, or would at least
have seen to the registration of his title, when he bought
at the Court sales. It is to be noted that the provisions of
S.38 apply not only to “estates,” i.e., land paying
Government revenue, but to revenue-free property or
any interest therein; and S. 42 covers the case of any
person succeeding to any proprietary right in an estate
or revenue-free property, whether by purchase,
inheritance, gift or otherwise. In fact the only entry in
the Government registers, so far as is disclosed by the
record of this case, is that in the mauzawari register
19
already referred to. Their Lordships recognize that such
an entry is no proof of title, but it is at least of
considerable significance in the absence of all other
records.
Under these circumstances their Lordships are
unable to hold that possession of the land with the house
standing upon it from 1900, or even from 1871, if that
can be assumed, is any proof of title to the land. It is in
every way consistent with a mere cantonment tenure
which has never been denied by Government, but which
would carry with it no property in the land. Indeed the
facts that no assessment is levied, and that no private
title has been registered, suggests this as the more
probable origin of the respondent’s possession.
x x x
On the whole therefore their Lordships have
come to the conclusion that the respondent has not
established his title to the land as apart from the
buildings, and they will humbly advise His Majesty that
the decrees of the Special Land Acquisition Judge and of
the High Court should be set aside and the award of the
Collector restored. The respondent must pay the costs
of the appellant throughout.”
20
In the instant case, when the grant under which the
petitioner claims having been set at naught, though the same was
questioned before this court, the cloud on the title of the petitioner
having been left undisturbed, the question of examination of the
title of the petitioner by the reference court, would hardly arise.
b. In the case of Sharda Devi v. State of Bihar and another
(2003) 3 SCC 128 : The facts were as follows :
According to the appellant, the said land was gairmajrua
malik land. It was as part of the zamindari estate. Before vesting
of zamindari, the land was settled by the ex-landlord in the name
of one Deo Narain Prasad by means of a registered deed of
settlement dated 24.4.1954. It was a raiyati settlement. The
appellant purchased the land from the said Deo Narain Prasad
through a registered deed of sale dated 7.9.1962. The appellant
has developed the land and kept it under cultivation raising the
crops. Her name was mutated in the revenue records by the Circle
Officer. A correction slip was issued to her in her name. The
21
State realized revenue from her from the very date of vesting i.e.
from 1955 till 1975. The rent receipts were exhibited on record.
On 18.5.1979, the Circle Officer issued a notice under
Section 3 of the Bihar Public Land Encroachment Act, 1956
(Bihar Act 15 of 1956) calling upon the appellant to explain why
she should not be treated as an encroacher on the land and why her
encroachment should not be removed. The notice was issued on
the premise that consequent upon vesting of zamindaris, the said
land had stood vested in the State of Bihar and was, therefore,
“public land” within the meaning of clause (3) of Section 2 of the
Bihar Public Land Encroachment Act, 1956. The appellant filed a
writ petition in the High Court registered as Civil Writ Jurisdiction
Case No. 366 of 1979 (R), laying challenge to the initiation of
such proceedings. The counsel for the State made appearance,
though a written counter-affidavit was not filed. The High Court
after hearing both the parties, upheld the plea of the appellant that
the said land was gairmajrua malik and not gairmajrua aam land
and by virtue of the registered deed of transfer in favour of Deo
22
Narain Prasad, the predecessor-in-title of the appellant, the
appellant was justified in claiming that she was raiyat of the land
in question and, therefore, could be ejected therefrom only in
accordance with the provisions of the Chhota Nagpur Tenancy
Act. Inasmuch as such ejectment is permissible only on specified
grounds, none of which existed in the present case, the notice
issued to the appellant was without jurisdiction and liable to be
quashed. The High Court by an order dated 23.7.1984 allowed the
writ petition and directed the proceedings initiated against the
appellant under the provisions of the Bihar Public Land
Encroachment Act, 1956 to be quashed.
In the year 1981, proceedings under Section 4(h) of the
Bihar Land Reforms Act, 1950 proposing to annul the settlement
of the land in question in favour of Deo Narain Prasad were
initiated. The proceedings were founded on the premise that the
said settlement was done with the object of defeating the
provisions of the Act. An inquiry was held. Once again the
appellant filed a writ petition seeking quashing of these
23
proceedings. The petition was registered as CWJC No.1663 of
1981 (R) and disposed of by the High Court by an order dated
25.3.1987.
During the pendency of these proceedings, notification
under Section 4(1) of the Act was published on 16.2.1982 as
already stated. It appears that the Collector was reluctant to make
an award in favour of the appellant determining the quantum of
compensation and directing its release to the appellant. On
7.1.1985 the Collector (Additional Collector, exercising power of
Collector) passed an order holding that the land had vested in the
State and hence no award directing payment of compensation to
the appellant was called for. The appellant filed a writ petition in
the High Court registered as CWJC No.147 of 1985 (R). By an
order dated 13.2.1985, the High Court after hearing the learned
counsel for the State, directed the writ petition to be allowed. A
mandamus was issued to the Collector to prepare the award in the
name of the appellant. The High Court went on to observe “if
there be any dispute thereafter, the matter be referred to the civil
24
court under Sections 18 and 30 of the Land Acquisition Act for
adjudication of any claim in accordance with law”. The order
dated 7.1.1985 passed by the Additional Collector, Lohardaga was
directed to be quashed. On 19.2.1986, the Collector (Land
Acquisition) prepared an award in the name of Smt. Sharda Devi
directing the amount of compensation as determined by him to be
paid of Smt. Sharda Devi, the appellant.
On 6.6.1986, much after the expiry of six weeks – the time
appointed for seeking a reference to the civil court under Section
18 of the Act, the Circle Officer, Kuru filed an application before
the Collector seeking a reference to the civil court. It was stated
in the application that a dispute existed in between the Circle
Officer, Kuru Anchal (on behalf of the State of Bihar) and Smt.
Sharda Devi as to title over the acquired land, which dispute may
be referred for adjudication to the civil court under Section 30 of
the Act. The dispute as to whether the title to the land vests in the
appellant, so as to entitle her to payment of compensation or
whether the appellant’s title had stood already extinguished in
25
view of the land having vested in the State was referred under
Section 30 of the Act to the decision of the court. The reference
was numbered as LA Misc. Case No.42 of 1986 before the civil
court. By an order dated 6.9.1986, the civil court directed the
reference to be rejected. During the course of its order, the
learned Special Subordinate Judge, Ranchi, which is the reference
court, opined that Smt. Sharda Devi was an occupancy raiyat of
the land in question and, therefore, the award prepared in her
name was just and legal.
By an order dated 25.3.1987, the High Court allowed the
writ petition filed by the appellant [CWJC No.1663 of 1981 (R)]
laying challenge to the proceedings initiated under Section 4(h) of
the Bihar Land Reforms Act. The result of this decision of the
High Court is that the effort of the State seeking annulment of
settlement and cancellation of the jamabandi entries standing in
the name of the appellant failed. The appellant was held to have
acquired the status of raiyat in respect of the land in question.
26
Against the judgment dated 6.9.1986 passed by the learned
Special Subordinate Judge, the State Government preferred an
appeal to the High Court. A learned Single Judge of the High
Court, by his judgment dated 25.4.1988 affirmed the judgment of
the Special Subordinate Judge and directed the appeal to be
dismissed. The State filed a letters patent appeal, which came up
for hearing before a Division Bench of the High Court. The
Division Bench framed five questions of law and directed the
matter to be placed before the Chief Justice for constituting a Full
Bench to answer the questions. One of the questions framed by
the Division Bench was: “ Whether the reference under Section 30
of the Land Acquisition Act, 1894 was maintainable at the
instance of the State of Bihar?”
The questions of law framed, including the question
referred to hereinabove, were answered against the appellant. As
a consequence, the letters patent appeal filed by the State was
allowed and the case was remanded to the learned Single Judge
for decision of the case in the light of the observations made by
27
the Full Bench. Feeling aggrieved by the order of remand, the
appellant was before the Apex Court. The question before the
court was – When the State proceeds to acquire land on an
assumption that it belongs to a particular person, could the award
be called into question by the State seeking a reference under
Section 30 of the Act on the premise that the land did not belong
to the person from whom it was purportedly acquired and was a
land owned by the State having vested in it, consequent upon
abolition of proprietary rights , much before acquisition?
In appreciating the controversy, the apex court examined
the Scheme of the LA Act.
On a comparative study of Section 18 and Section 30 of the
LA Act it was held thus :
“23. xxx
Under Section 18 the subject-matter of reference
can be a dispute as to any one or more of the following:
(i) as to the measurement of the land, (ii) as to the amount
or the quantum of the compensation, (iii) as to the persons
28
to whom the compensation is payable, (iv) as to the
apportionment of the compensation among the persons
interested. Under Section 30 the subject matter of dispute
can be: (i) the apportionment of the amount of
compensation or any part thereof, (ii) the persons to
whom the amount of compensation or any part thereof is
payable. Though the expression employed in Section 18 is
'the amount of compensation' while the expression
employed in Section 30 is 'the amount of compensation or
any part thereof', this distinction in legislative drafting is
immaterial and insignificant and a dispute as to
entitlement or apportionment of part of the compensation
would also be covered by Section 18 of the Act on the
principle that the whole includes a part too. Thus, at the
first blush, it seems that Section 30 overlaps Section 18 in
part; but as will be seen shortly hereinafter, it is not so.”
And applying the principles laid down in the case of
Dr G.H.Grant v. State of Bihar, AIR 1966 SC 237 and on an in
depth analysis of the provisions of the Act, the difference between
reference under Section 18 and the one under Section 30 was
summarized thus :
29
“By reference to locus
Under Section 18(1) a reference can be made by
Collector only upon an application in writing having
been made by (i) any person interested (ii) who has not
accepted the award (iii) making application in writing,
to the Collector, requiring a reference by the Collector
to the Court (iv) for determination of any one of the four
disputes (specified in the provision), and (v) stating the
grounds on which objection to the award is taken. For
reference under Section 30 no application in writing is
required. The prayer may be made orally or in writing
or the reference may be made suo motu by the Collector
without any one having invited the attention of the
Collector for making the reference.
By reference to the disputes referable
Under Section 18(1) there are four types of
disputes which can be referred to Civil Court for
determination. They are the disputes: (i) as to the
measurement of the land, (ii) as to the amount of the
compensation, (iii) as to the persons to whom the
compensation is payable, or (iv) as to the apportionment
of the compensation among the persons interested.
Under Section 30 the only disputes which are referable
are : (i) any dispute as to the apportionment of the
amount of compensation or any part thereof, or (ii) a
30
dispute as to the persons to whom the amount of
compensation or any part thereof is payable. A dispute
as to the measurement of the land or as to the quantum
of compensation or a dispute of a nature not falling
within Section 30, can neither be referred by the
Collector under Section 30 of the Act nor would the
Civil Court acquire jurisdiction to enter into and
determine the same.
By reference to nature of power
Under Section 18 of the Act the Collector does
not have power to withhold the reference. Once a
written application has been made satisfying the
requirements of Section 18, the Collector shall make a
reference. The Collector has no discretion in the matter;
whether the dispute has any merit or not is to be left for
the determination of the Court. Under Section 30 the
Collector may refer such dispute to the decision of the
Court. The Collector has discretion in the matter.
Looking to the nature of the dispute raised, the person
who is raising the dispute, the delay in inviting the
attention of the Court, and so on - are such illustrative
factors which may enter into the consideration by the
Collector while exercising the discretion. If the
Collector makes the reference it may be decided by the
Court subject to its forming an opinion that the dispute
31
was capable of reference and determination under
Section 30 of the Act. In case the Collector refuses to
make a reference under Section 30 of the Act, the person
adversely affected by withholding of the reference or
refusal to make the reference shall be at liberty to
pursue such other remedy as may be available to him
under the law such as filing a writ petition or a civil suit.
By reference to limitation
Under Section 18 the written application
requiring the matter to be referred by the Collector for
the determination of the Court shall be filed within six
weeks from the date of the Collector's award if the
person making it was present or represented before the
Collector at the time when he made his award or within
six weeks of the notice from the Collector under Section
12(2) or within six months from the date of the
Collector's award, whichever period shall first expire.
There is no such limitation prescribed under Section 30
of the Act. The Collector may at any time, not bound by
the period of limitation, exercise his power to make the
reference. The expression 'the person present or
represented' before the Collector at the time when he
made his award would include within its meaning a
person who shall be deemed to be present or
represented before the Collector at the time when the
32
award is made. No one can extend the period of
limitation by taking advantage of his own wrong.
Though no limitation is provided for making a reference
under Section 30 of the Act, needless to say, where no
period of limitation for exercise of any statutory power
is prescribed the power can nevertheless be exercised
only within a reasonable period; what is a reasonable
period in a given case shall depend on the facts and
circumstances of each case.
The question framed was answered thus :
“36. To sum up the State is not a 'person interested'
as defined in Section 3(b) of the Act. It is not a party to the
proceedings before the Collector in the sense, which the
expression 'parties to the litigation' carries. The Collector
holds the proceedings and makes an award as a
representative of the State Government. Land or an
interest in land pre-owned by State cannot be subject
matter of acquisition by the State. The question of
deciding the ownership of State or holding of any interest
by the State Government in proceedings before the
Collector cannot arise in proceedings before the Collector
(as defined in Section 3(c) of the Act). If it was a
government land there was no question of initiating the
proceedings for acquisition at all. The Government would
33
not acquire the land, which already vests in it. A dispute
as to pre-existing right or interest of the State Government
in the property sought to be acquired is not a dispute
capable of being adjudicated upon or referred to the Civil
Court for determination either under Section 18 or
Section 30 of the Act. The reference made by the Collector
to the Court was wholly without jurisdiction and the Civil
Court ought to have refused to entertain the reference and
ought to have rejected the same. All the proceedings
under Section 30 of the Act beginning from the reference
and adjudication thereon by the Civil Court suffer from
lack of inherent jurisdiction and are therefore a nullity
liable to be declared so.
37. However, we would like to clarify our decision
by sounding two notes of caution. Firstly, the quashing of
the proceedings under Section 30 of the Land Acquisition
Act would not debar the State from pursuing such other
legal remedy before such other forum as may be available
to the State Government and on the merits and the
maintainability thereof, we express no opinion herein.”
In the instant case, not only was the award made is the
subject matter of criminal proceedings, the grant under which the
petitioner claimed, having been held to be bogus, it is
34
presumptuous on the part of the petitioner that a second award
should now be made favouring the petitioner and for the State to
thereafter seek a reference under Section 30 to the civil court. The
same is impermissible as laid down in the above decision.
c. In the case of Dr. G.H. Grant vs. The State of Bihar AIR 1966
SC 237 : The facts of the case were as follows :
Dr. Gregor Hugh Grant hereinafter called 'Dr. Grant'--was
the proprietor of the Dumka Estate in the District of Santhal
Parganas in the State of Bihar. By a notification under s. 4(1) of
the Land Acquisition Act, 1894 published on June 8, 1949 the
Government of Bihar notified for acquisition a larger area of land
out of the estate of Dr. Grant for establishing "an agricultural
farm." The Collector made on March 25, 1952 awards setting out
the true area of the land notified for acquisition, compensation
which in his opinion should' be allowed for the land and
apportionment of the compensation among all the persons known
or believed to be interested in the land. The awards were filed in
35
the Collector's office on the same day. In respect of Plot No. 142,
Rs. 575-14-0 were awarded by the Collector as compensation in
equal shares to Dr. Grant and the members of the village
community, who had also made a claim for compensation. In
respect of Plot No. 68, the Collector awarded Rs.294-6-0 as
compensation. In respect of acquisition of an area admeasuring
88.91 acres consisting of several plots, the Collector awarded
Rs.1,64,446-5-10 as compensation and directed apportionment in
the manner set out in the award.
On May 5, 1952 Dr. Grant applied to the Collector under
Section 18 of the Land Acquisition Act that the three matters be
referred for determination by the Court of the amount of
compensation payable to the owners. Similar applications were
filed in respect of Plot Nos. 68 & 142 by the members of the
village community. In consequence of a notification issued under
Section 3 of the Bihar Land Reforms Act 30 of 1950 the Dumka
Estate vested on May 22, 1952 in the State of Bihar. In exercise of
the power under Section 16 of the Land Acquisition Act, the
36
Government of Bihar took over possession on August 21, 1952 of
the Lands notified for acquisition. On October 15, 1952 the
Government Pleader submitted a petition before the Collector
claiming that the compensation money awarded to Dr. Grant had
since the publication of the notification under the Bihar Land
Reforms Act become payable to the State Government, and the
dispute between Dr. Grant and the State Government regarding
the right to payment may be referred to the Court under Section 30
of the Land Acquisition Act.
The Collector made on November 5, 1952 three references
to the District Court, Santhal Parganas. Two out of those
references were made in exercise of powers under Sections 30 &
18 of the Land Acquisition Act, and the third under Section 30.
The District Judge by his order dated April 9, 1954 held that the
State of Bihar had no interest in the property notified for
acquisition when the award was filed before the Collector under
Section 12 of the Land Acquisition Act, and the State could, lay
no claim to the compensation money awarded. The District Judge
37
upheld the apportionment of compensation between Dr. Grant and
the village community and enhanced the valuation of the land and
directed that compensation at the enhanced rate be awarded.
Against the order of the District Judge in the references,
three appeals Nos. 401 of 1953, 297 of 1954 and 298 of 1954
were preferred by the State to the High Court of Judicature at
Patna. The High Court held that title of the owner to the land
acquired under the Land Acquisition Act could not be
extinguished under that Act till possession was taken under
Section 16 of the Act, and that since the title of Dr. Grant in the
land acquired stood statutorily vested in the State by virtue of the
notification issued under the Bihar Land Reforms Act, he was not
entitled to receive the compensation money. In the view of the
High Court, title to the compensation money had vested in the
State Government before possession was obtained by the State
Government under Section 16 of the Land Acquisition Act, and
that it was open to the Collector, on a dispute raised by the State
38
about the right to receive the compensation money, to make a
reference to the Court under Section 30 of the Act.
It was contended on behalf of the appellant that :
“(1) the Collector had no authority to refer the
matter under Section 30 after he had apportioned the
amount of compensation under Section 11 (2) since title
to compensation is derived solely from and on the date
of the award, the notification under Section 3 of the
Bihar Land Reforms Act did not deprive Dr. Grant of his
right to receive compensation, and (3) the State
Government was not "a person interested" within the
meaning of the Land Acquisition Act, and could not
apply for a reference under Section 30.”
It was held thus by the Apex Court:
“The dispute between the State of Bihar and Dr.
Grant has been expressly referred by the Collector to
the Court for decision. Under the Bihar Land Reforms
Act, the title of Dr. Grant to the land notified for
acquisition became vested in the State, and therefore the
right to compensation for the land acquired devolved
upon the State. A dispute between Dr. Grant and the
State as to their conflicting claims to the compensation
39
money was clearly a dispute which could be referred
under Section 30 of the Land Acquisition Act to the
Court and was in fact referred to the Court. We are
unable to agree with counsel for Dr. Grant that the
reference made by the Collector under Section 30 was
incompetent, because the State was not interested in the
compensation money on the date when the award was
made. The right of the State of Bihar has undoubtedly
arisen after the award was made, but once the title
which was originally vested in Dr. Grant stood
statutorily transferred to the State, it was open to the
State to claim a reference, not because the State was a
person interested in the compensation money before the
date of the award, but because of the right which has
arisen since the award was made.”
The principles laid down in the above case have been
elucidated by the apex court itself in Sharada Devi’s case, supra,
thus :
“(i) There are two provisions in the Act under
which the Collector can make a reference to the Court,
namely, Section 18 and Section 30. The powers under
the two sections are distinct and may be invoked in
40
contingencies which do not overlap. A person shown in
that part of the award which relates to apportionment of
compensation who is present either personally or
through a representative or on whom notice is issued
under Section 12(2), must, if he does not accept the
award, apply to the Collector to refer the matter to the
Court under Section 18 within the time prescribed
thereunder. But a person who has not appeared in the
acquisition proceedings before the Collector may, if he
is not served with notice of filing, raise a dispute as to
apportionment or as to the persons to whom it is payable
and apply to the Court 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. For a reference
under Section 30, no period of limitation is prescribed.
(SCR pp.583 E-584 A)
(ii) It is not predicated of the exercise of the
power to make a reference under Section 30 that the
Collector has not apportioned the compensation money
by his award. (SCR p.584 D).
(iii) The award made by the Collector under
Section 11 is not the source of the right to compensation.
An award is strictly speaking only an offer made by the
Government to the person interested in the land notified
41
for acquisition; the person interested is not bound to
accept it and the Government can also withdraw the
acquisition u/s 48. It is only when possession of the land
has been taken by the Government u/s 16 that the right
of the owner of the land is extinguished. Therefore the
appellant's contention that title to compensation is
derived solely from and on the date of the award could
not be accepted. (SCR pp.584 H-585 C)
(iv) The liability of the Government u/s 31 to pay
compensation to the person entitled thereto under the
award does not imply that only the persons to whom
compensation is directed to be paid under the award
may raise a dispute u/s 30. The scheme of apportionment
by the Collector under Section 11 is conclusive only
between the Collector and the persons interested and not
among the persons interested. Payment of compensation
u/s 31 to the persons declared in the award to be entitled
thereto discharges the State of its liability to pay
compensation leaving it open to the claimant to
compensation to agitate his right in a reference u/s 30 or
by a separate suit. (SCR p.586 B-F)
(v) Under the Bihar Land Reforms Act the title of
the appellant to the land noticed for acquisition became
vested in the State and therefore the right to
compensation for the land acquired devolved upon the
42
State. A dispute then arose between the State
Government and the appellant "as to the persons to
whom" compensation was payable. The State had no
right to the compensation payable for the land under a
title existing before the date of the award of the
Collector and no application could be made by it as a
person interested within the meaning of Section 18. But
a dispute between the appellant and the State as to their
conflicting claims to the compensation money was
clearly a dispute which could be referred u/s 30 of the
Act to the Court. There is nothing in Section 30
which excludes a reference to the Court of a dispute
raised by a person on whom the title of the owner of the
land has since the award, devolved. (SCR pp. 584 G;
586 A, G, H)”
The Court proceeded to follow and apply the above
principles, in deciding Sharda Devi.
The above decision in Dr.Grant’s case which incidentally
has been relied upon in a decision of a learned single judge of this
court, in the case of Keshava Murthy v. the State of Karnataka
ILR 2005 Kar 4772, would hardly support the case of the
43
petitioner. In so far as the decision in Keshava murthy’s case is
concerned, which is sought to be relied upon by the learned
counsel for the petitioner, it is noticed that the order as reported is
rendered in a Review Petition and in the absence of complete facts
and the reasoning of the judge whose order was under review (and
which has been “set aside”(sic)) – it would be difficult to
subscribe to the view expressed therein.
The petitioner is not entitled to any reliefs in the present