Allowed

Budhuwa Oraon v. State of Jharkhand and Ors.

Jharkhand HC18 Oct 2021WPC/7391/2012

Case brief

AI extract

What is this about?

The High Court allowed two writ petitions seeking to quash orders where the District Land Acquisition Officer adjudicated a dispute regarding compensation apportionment. The court held the officer lacking jurisdiction under Section 30 of the Land Acquisition Act, 1894, and remitted the matter to the Collector to refer the dispute to the competent Civil Court.

What did the court decide?

Impugned orders dated 03.07.2012 and 14.03.2011 set aside and matter remitted to the Collector to refer the dispute to the competent Court under Section 30.

Budhuwa Oraon Vs State of Jharkhand and Ors. — Land Acquisition | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Writ Jurisdiction)

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W.P.(C) No. 7391 of 2012

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….....

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Budhuwa Oraon …. ..... Petitioner Versus State of Jharkhan & Others. …. ..... Respondents

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State of Jharkhan & Others.

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With W.P.(C) No. 2752 of 2011

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….....

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Budhwa Oraon & Others …. ..... Petitioners Versus State of Jharkhand & Others …. ..... Respondents

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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Petitioner : Mr. Amar Kumar Sinha, Advocate : Mr. Kundan Kr. Ambastha, Advocate. For the Respondents-State : Mr. Manoj Kumar No.3, G.P.-II For the Private Respondents : Mr. Sunil Kumar, Advocate. (in W.P.(C) No.7391/12) For the Petitioners : Mr. Rohitashya Roy, Advocate : Mr. Tarun Kumar Mahato, Advocate For the Respondents-State : Mr. Manoj Kumar No.3, G.P.-II For the Private Respondents : Mr. Sunil Kumar, Advocate. (in W.P.(C) No.2752/11) ........

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14/18.10.2021.

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Both matters are being taken together as the petitioner, Budhuwa Oraon, son of late Durga Oraon, resident of Village- Gargaon Bero, P.O. & P.S.- Bero, District- Ranchi has preferred these writ petitions for quashing the order dated 03.07.2012 and 14.03.2011 in W.P.(C) No.7391/2012 and W.P(C) No.2752/11 respectively, passed by learned District Land Acquisition Officer, Ranchi in Land Acquisition Case No.1/2008-2009, whereby the Land Acquisition Officer has ordered for payment of amount of compensation with respect to the lands of Khata No. 339, Plot Nos. 820, 677, 823, 826, 839 and 847, area-5.95 acres and with respect to the lands of Khata Nos. 311, 312 & 194, Plot Nos. 857, 861, 862, 863, 864, 845, 459, 856, area-4.61 acres.

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Learned counsel for the petitioner has submitted that pursuant to the orders, awards have been prepared and thereafter an objection was filed under Section 30 of the Land Acquisition Act before District Land Acquisition Officer, Ranchi, but without complying the provisions under Section 30 of the Land Acquisition Act, the District Land Acquisition Officer has passed the impugned order dated 03.07.2012 in W.P.(C)

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No.7391/2012 and impugned order dated 14.03.2011 in W.P.(C) No.2752/2011, which are assailed before this Court.

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Learned counsel for the petitioner, Mr. Amar Kumar Sinha assisted by learned counsel, Mr. Kundan Kumar Ambastha has submitted that both the impugned orders are with respect to the same party and with respect to the land of Mauza- Gungaon of different plots of Khata No.342, which are subject matter of the present writ petitions before this Court as contemplated under the law.

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Learned counsel for the petitioner has further submitted that under Section 30 of the Land Acquisition Act,1894 the District Land Acquisition Officer or Collector has not referred the dispute to the Court, with regard to the apportionment.

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Section 30 of the Land Acquisition Act, 1894 reads as follows:-

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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 ,

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Further, the 'Court' has been defined under Section 3(d) of the Land Acquisition Act,1894, which reads as follows:-

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“3(d) the expression “Court” means a principal Civil Court of original jurisdiction, unless the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform functions of the Court under this Act;”

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Learned counsel for the petitioner has thus submitted that impugned orders cannot sustained in the eyes of law as the same are contrary to the provision of Section 30 of the Land Acquisition Act, 1894.

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Learned counsel for the petitioner has further submitted that this issue has already been decided by the Hon’ble Apex Court in the case of Dr. G. H. Grant Vs. State of Bihar reported in (1965) 3 SCR 576 = AIR 1966 SC 237 at para-19, which may profitably be quoted hereunder:-

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“19. It was strongly pressed that under section 31 of the Land Acquisition Act the Collector is bound to tender payment of

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compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and therefore the only persons who can raise a dispute under section 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of Section 30. The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between 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 appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested to the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under Section 18 or under Section 30 or in a separate suit. Payment of compensation therefore under Section 31 to the person declared by the award to be entitled thereto discharges the State of its liability to pay compensation (subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under Section 30 or by a separate suit.”

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Learned counsel for the petitioner has further submitted that the same view has also been taken by the Hon’ble High Court of Judicature at Patna in the case of Ramesh Prasad Bhagat Vs. The State of Bihar & Ors., (2008) 1 PLJR 721.

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Learned counsel for the petitioner has thus submitted that this Court, considering Section 30 of Land Acquisition Act, 1894 and the decision rendered by the Apex Court, may set aside the impugned orders and the Collector may be directed to refer the issue before the appropriate Court for the adjudication of the dispute between the parties.

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Learned counsel, Mr. Sunil Kumar appearing for private respondents has opposed the prayer and has submitted that petitioners are stranger to the land, which has been acquired by the State and they don’t have any right over the said land.

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Learned counsel for the private respondents has further submitted that under Section 12-A inserted by State of Bihar in Land Acquisition Act, 1894, vide Bihar Act 11 of 1961 the period of limitation is six months Section 12-A of the Act may profitably be quoted hereunder:-

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“12-A, Correction of award: - (1) The collector may, before a reference, if any, is made under Section 18,-

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(i) on his own motion, within six months from the date of the award, or

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(ii) on the application of the person interested made within six months from the date of award, correct any clerical or arithmetical error in the award.

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(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.

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(3) Where, as a result of correction made under sub-section (1), it appears to the Collector that any amount has been paid in excess to any person, such person shall, after having been given an opportunity of being heard, be liable to refund the excess and if, on an order made by the Collector in this behalf, he fails or refuses to pay it, the same shall be realised as a public demand.”

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Learned counsel for the private respondents, Mr. Sunil Kumar has placed reliance upon the judgment passed by Hon’ble Apex Court in the case of Premji Nathu Vs. State of Gujarat and Another reported in (2012) 5 SCC 250, in the case of Popat Bahiru Govardhane and Others Vs. Special Land Acquisition Officer and Another reported in (2013) 10 SCC 765, in the case of Vijay Mahadeorao Kubade Vs. State of Maharashtra through the Collector reported in (2018) 8 SCC 266 and in the case of Naresh Kumar and Others Vs. Government (NCT of Delhi), reported in (2019) 9 SCC 416 and has submitted that under Section 12-A of the Land Acquisition Act, 1894, the period of limitation is six months.

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Learned counsel for the private respondents has thus submitted that compensation has been received by the private respondents in respect of Award No.61, as such, this matter is a stale one and this court may dismiss the writ petition.

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Learned counsel for the State, Mr. Manoj Kumar No.3, G.P.II has submitted that the prayer, which has been made by writ petitioners, with regard to order passed by the District Land Acquisition Officer on the application filed under Section 30 of the Land Acquisition Act. The State has notified the award under Section 11 of Land Acquisition Act and it has been indemnified to private respondents with regard to Award No.61, but after taking an indemnity bond that if any error is found, the private respondents has to refund the said amount so as to pay the same to the rightful person.

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Learned counsel for the State has thus submitted that this Court has to consider the pros and cons of the matter after such a long delay.

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Learned counsel for the State has fairly submitted that the Apex Court has discussed the issue in the case of Sharda Devi Vs. State of Bihar & Another reported in (2003) 3 SCC 128 at para-25, which may profitably be quoted hereunder:-

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“25. Keeping in view the principles laid down by this Court in Dr. G.H. Grant's case (supra) and analyzing in-depth the provisions of the Act the difference between reference under Section 18 and the one under Section 30 can be summarized and set out as under:-

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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

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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.

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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 (d) 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 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.

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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

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reference it may be decided by the Court subject to its forming an opinion that the dispute 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.

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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 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.

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The scheme of the Act reveals that the remedy of reference u/s 18 is intended to be available only to a

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'person interested'. A person present either personally or through representative or on whom a notice is served u/s 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed u/s 18(2) to make a reference to the Court. The basis of title on which the reference would be sought for u/s 18 would obviously be a pre- existing title by reference to the date of the award. So is Section 29, which speaks of 'persons interested'. Finality to the award spoken of by Section 12(1) of the Act is between the Collector on one hand and the 'persons interested' on the other hand and attaches to the issues relating to (i) the true area, i.e. measurement of the land, (ii) the value of the land, i.e. the quantum of compensation, and (iii) apportionment of the compensation among the 'persons interested'. The 'persons interested' would be bound by the award without regard to the fact whether they have respectively appeared before the Collector or not. The finality to the award spoken of by Section 29 is as between the 'persons interested' inter se and is confined to the issue as to the correctness of the apportionment. Section 30 is not confined in its operation only to 'persons interested'. It would, therefore, be available for being invoked by the 'persons interested' if they were neither present nor represented in proceedings before the Collector, nor were served with notice u/s 12(2) of the Act or when they claim on the basis of a title coming into existence post award. The definition of 'person interested' speaks of 'an interest in compensation to be made'. An interest coming into existence post award gives rise to a claim in compensation which has already been determined. Such a person can also have recourse to Section 30. In any case, the dispute for which Section 30 can be invoked shall remain confined only (i) as to the apportionment of the amount of compensation or any part thereof, or (ii) as to the persons to whom the amount of compensation (already determined) or any part thereof is

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payable. The State claiming on the basis of a pre-existing right would not be a 'person interested', as already pointed out hereinabove and on account of its right being preexisting, the State, in such a case, would not be entitled to invoke either Section 18 or Section 30 seeking determination of its alleged pre-existing right. A right accrued or devolved post award may be determined in a reference u/s 30 depending on Collector's discretion to show indulgence, without any bar as to limitation. Alternatively, such a right may be left open by the Collector to be adjudicated upon in any independent legal proceedings. This view is just, sound and logical as a title post award could not have been canvassed upto the date of the award and should also not be left without remedy by denying access to Section 30. Viewed from this angle, Section 18 and 30 would not overlap and would have fields to operate independent of each other.

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We have entered into examining the scheme of the Act and exploring the difference between reference under Section 18 and the one under Section 30 of the Act as it was necessary for finding out answer to the core question staring before us. The power to acquire by State the land owned by its subjects hails from the right of eminent domain vesting in the State which is essentially an attribute of sovereign power of the State. So long as the public purpose subsists the exercise of the power by the State to acquire the land of its subjects without regard to the wishes or willingness of the owner or person interested in the land cannot be questioned. (See Scindia Employees' Union Vs. State of Maharashtra and Ors., (1996) 10 SCC 150, para 4 and State of Maharashtra Vs. Sant Joginder Singh Kishan Singh and Ors. 1995 Supp (2) SCC 475, para 7). The State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein the ownership or

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the entirety of rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act. The position of law is so clear as does not stand in need of any authority to support. Still a few decided cases in point may be referred since available.”

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Learned counsel for the State has thus submitted that this Court may pass order in accordance with law.

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After hearing learned counsel for the parties and on the basis of the materials available on record, it appears that the District Land Acquisition Officer has exercised his power by adjudicating the dispute raised under Section 30 of the Land Acquisition Act, which ought to have been referred by the Collector to the competent court as defined under Section 3(d) of the Land Acquisition Act, 1894 for adjudication.

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So far, the question of limitation is concerned, with respect to Section 30 of the Land Acquisition Act, as such, the submission made by the private respondents and the judgment relied by the private respondents are not applicable in the present facts of the case.

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Under the aforesaid circumstances, in view of the judgment passed by the Apex Court in the case of Dr. G.H. Grant (Supra) followed by the Apex Court in the case of Sharda Devi (Supra), this Court set aside the impugned orders dated 03.07.2012 and 14.03.2011 assailed in W.P.(C) No.7391/2012 and W.P(C) No.2752/11 respectively, passed by learned District Land Acquisition Officer, Ranchi in Land Acquisition Case No.1/2008-2009, and remit the matter before the Collector, Ranchi to act in accordance with Section 30 of the Land Acquisition Act, 1894 by referring the issue before the competent court defined under Section 3(d) of the Land Acquisition Act, 1894.

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Accordingly, both writ petitions are hereby allowed.

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I.A. No.8481/2013 and I.A. No.7378/2016 preferred in W.P. (C) No.7391/2012 are closed.

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(Kailash Prasad Deo, J.)

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Jay/-

Budhuwa Oraon v. State of Jharkhand and Ors.

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Budhuwa Oraon v. State of Jharkhand and Ors.

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