Hon'ble Abhinava Upadhya,J.
We have heard Sri A.K.Sachan, learned counsel for the petitioners and Sri Neeraj Upadhyay, learned counsel appearing for respondent No.3. Sri Amit Manohar appeared for respondent no. 2 and learned Standing Counsel appeared for respondent No.1 and 4.
These two writ petitions have been filed challenging the order of the Addl. Collector, Special Land Acquisition Officer rejecting the objection filed by the petitioners by which the petitioners had claimed payment of compensation with regard to the land in question.
Counter and rejoinder affidavits have been exchanged.
In the first writ petition, the prayer is made to quash the order dated 25.10.2007 by which the objections of the petitioners were rejected whereas in the second writ petition, the petitioner has prayed for quashing the order dated 19.11.2007 rejecting the objection of Yad Ram, petitioner.
Brief facts which are necessary to be noticed for deciding the writ petitions are as follows.
Yad Ram and Parsadi (father of petitioner in writ petition no.4009 of 2008) were tenure holders of plot No.380 area 8 Bighas 11 Biswas. General Power of attorney was executed by Yad Ram and Parsadi, sons of Nathua in favour of R.C.Pant on 17.10.1994. Power of attorney was duly executed by Yad Ram and Parsadi which also bears signature of petitioner Sunder as one of the witness in the document of power of attorney. A sale deed was executed by R.C.Pant in favour of respondent No.3 Shivalik Co-operative Awas Samiti Ltd. of the plot in question on 20.4.1996 on the basis of which the name of respondent no.3 was also mutated in the revenue records. However, on subsequent objection filed by the petitioners, the mutation orders were recalled. The land in dispute was acquired under the Land Acquisition Act and an award was given by the Special Land Acquisition Officer. The possession of the land was taken by NOIDA Authority.
In the proceeding for disbursement of the compensation, objections were filed by Sunder and Baleshwar , the petitioners in the first writ petition as well as the Yad Ram, the petitioner in the second writ petition. The case of the Sunder and Baleshwar before the SLAO was that the petitioners are Bhumidhars, hence, the compensation be paid in their favour. The allegation was also made that the respondent No.3 Shivalik Co-operative Awas Samiti Ltd. on the basis of fictitious sale deed was making efforts to get their name recorded in the revenue record. The objection of the petitioner was contested by respondent No.3 stating that respondent no.3 has obtained sale deed of the land in question on 20.4.1996 by the power of attorney holder of Yad Ram and Parsadi and they are entitled to receive compensation. It was stated that the petitioners have no claim and their objection has to be rejected. The SLAO passed an order on 25.10.2007 by which the objection of the Sunder and Baleshwar has been rejected. The SLAO observed that there is no force in the objection filed by the petitioners. The power of attorney was registered and was executed before the Sub-Registrar and there was no material to establish that power of attorney was ever cancelled. Similar orders were passed rejecting the objection of Yad Ram.
Sri A.K.Sachan, learned counsel for the petitioners contended that even if the power of attorney was executed by Yad Ram and Parsadi, before the date of execution of sale deed, Parsadi had died. He submitted that Parsadi had died on 15.11.1995 and the sale deed was executed on 20.4.1996, hence the petitioners being heirs were entitled for compensation. He, however, submitted that SLAO committed an error in not referring the matter under section 30 of the Land Acquisition Act, 1894 ( in short, the Act) whereas he ought to have referred the matter under section 30 of the Act. In support of the writ petition filed by Yad Ram, learned counsel for the petitioner submits that one of the executor of the power of attorney ,that is, Parsadi having died before the execution of the sale deed, the sale deed could not have been executed by the power of attorney holder, hence, while passing the order the SLAO ought to have ignored the sale deed.
Sri Neeraj Upadhyay refuting the submissions of the learned counsel for the petitioner contended that the objections filed by the petitioners were fanciful and has no substance. He submitted that the registered power of attorney was executed by both Yad Ram and Parsadi in which the petitioner Sunder was also a signatory. He has referred to a photo copy of the power of attorney containing the signature of Sunder. He further referring to the counter affidavit filed by respondent No.3 states that substantial payments were made to Parsadi before the execution of power of attorney. He has referred to relevant extract of the audit report and balance sheet of the Society and submits that in normal course of transactions receipt of substantial amount by Parsadi clearly indicates that the father of the petitioner had received the amount and power of attorney was executed thereafter. He further submits that the audit report and the balance sheet containing the evidence to that effect has not been disputed in the rejoinder affidavit. Learned counsel for the respondent submits that there being no substance in the objection of the petitioner and the same has been rightly rejected. The petitioners of both the writ petitions never took any step for cancellation of sale deed or power of attorney, if they were aggrieved by the aforesaid documents. He submits that the sale deed has never been cancelled by any competent court of law, therefore, the SLAO has rightly relied upon the sale deed . Referring to section 30 of the Act, it is contended that section 30 does not contemplate referring to each and every dispute whichever is filed before the SLAO. The SLAO has to satisfy himself to the bona fide and genuineness of the objection and only then the discretion to refer the dispute is to be exercised.
We have heard learned counsel for the parties and have perused the record.
The facts which have been brought on record clearly indicate that the registered power of attorney was executed by both Yad Ram and Parsadi. The documents which have been brought on record pertaining to the receipt of the payments by Parsadi clearly supports the submission of the learned counsel for the respondents that the power of attorney was executed and acted upon. The execution of the sale deed was also by the power of attorney holder in favour of respondent no.3. Although the sale deed was executed on 20.4.1996, there is nothing on record to show that any steps were taken by the petitioners for cancellation of sale deed or for cancellation of power of attorney at any point of time. Each and every dispute is not to be referred automatically under section 30 of the Act. Section 30 gives jurisdiction and discretion to the SLAO to refer a dispute for determination by Civil Court. Section 30 of the Act is as follows:
"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."
Section 30 uses the expression "the Collector may refer such dispute". Section 30 thus contemplates a discretion in the Collector to refer a dispute for decision of the civil court regarding entitlement of compensation. Section 30 of the Act does not contemplate that each and every objection has to be necessarily referred to civil court.
Learned counsel for the petitioner has placed reliance on a judgment of the Apex Court in the case of Sri Prasada Rao Mikkilineni and others Vs. State of A.P. And others (2000) 9 Supreme Court Cases 371. In the said judgment, the Apex Court noted that there was a dispute about the title and also regarding apportionment of compensation amount, hence that was a fit case for reference. There cannot be any dispute to the proposition laid down by the Apex Court. In appropriate case, the power of reference can be exercised under section 30 of the Act. The next judgment relied upon by the learned counsel for the petitioner is Omvir Singh and others Vs. State of U.P. And others 2004 (1) AWC 897 where a Division Bench has held that since there was a dispute of title, the SLAO was required to make a reference. In the case before the Division Bench, the parties were claiming title to the property in different shares. In the said judgment, following observations were made in paras 6,7 and 8.:
"6. From the decisions in Dr. G.H.Grant and A.L.T. Singirigudi (supra), it is clear that it was not open to the A.D.M. to decide inter se title dispute between the parties to receive compensation. Since there was dispute about the title to the land acquired, the A.D.M. was required to make a reference to the Court under Section 18 or 30 of the Act. In paragraph 19 of Dr. G.H.Grant (supra), the Apex Court held as under:
"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."
7.From the facts of this case it is evident that the parties were claiming title to the land in different shares. They were pleading finality of judgment dated 24.5.1959. The respondents No.3 to 6 also pleaded bar of Section 49 of the U.P.C.H. Act. It was also to be considered that on whom the share of Kishan Lal devolved. These questions were required to be decided on merits by the Court in reference either under Section 18 or 30 of the Act. The decisions relied by the learned counsel for the respondents do not help him. In such a situation the Collector or the A.D.M. Could only make a reference under Section 30 of the Act to the Court to decide their inter se title and entitlement to receive the compensation. The Apex Court in Sri Prasad Rao Mikkilineni v. State of A.P. (2000) 9 SCC 371 , had held that where there was a dispute regarding title and also apportionment of the compensation amount, a direction is liable to be issued to the A.D.M. to make a reference under Section 18 read with Section 30 of the Act.
8. Since the A.D.M. did not have power or jurisdiction to decide the inter se title of the parties or to apportion the amount of compensation in proceedings under Section 11 of the Act, the order dated 19.10.2001 passed by the A.D.M. Cannot be maintained."
There cannot be any dispute to the proposition that Collector has no jurisdiction to finally determine a issue . If he finds a dispute which may be referred , a reference is to be made but he is not to adjudicate himself about the contentious issues regarding title. As observed above, reference under section 30 is to be made in appropriate case by the Collector when he is satisfied that the case is fit to be referred under section 30 of the Act. Reference to the judgment of the Apex Court in the case of Dr. G.H.Grant Vs. State of Bihar AIR 1966 SC 237 has also been made where the Apex Court while considering the ambit and scope of section 30 of the Act has observed as follows in paragraph 13 and 14:
"13.There are two provisions ss. 18(1) and 30 which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable. By sub-s. (1) of s. 18 the Collector is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed' by sub-s. (2) of that section 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 s. 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 which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under sub-s. (2) of s. 12, must, if he does not accept the award, apply to the Collector within the time prescribed under s. 18(2) to refer the matter to the Court. But a person who has not appeared in the acquisition proceeding before the Collector may, if he is not served with notice of the 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 s. 30, for determination of his right to compensation which may have existed before the award, or which may have develoved upon him since the award. Whereas under s. 18 an application made to the Collector must be made within the period prescribed by sub-s.(2) cl. (b), there is no such period prescribed under s. 30. Again under s. 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under s. 30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared. by his award.
14.We are unable to agree with the view expressed by the Mysore High Court in Boregowda and another v. Subbaramiah and others that if the Collector has made apportionment of the compensation money by his award his power to refer a dispute under s. 30 cannot be exercised. Clause (iii) of s. 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land: he has' no discretion in the matter. Exercise of the power under s. 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary: the Collector may, but is not bound to exercise that power. It is however not predicated of the exercise of that power that the Collector has notapportioned the compensation money by his award. We are also unable to agree with the Mysore High Court that the power under s. 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by s. 18(2) of the Land Acquisition Act. In our judgment the powers exercisable by the Collector under s. 18 (1) and under s. 30 are distinct and may be invoked in contingencies which do not overlap."
A Division Bench of this Court in which one of us (Ashok Bhushan,J) was member considered Section 30 of the Act. The Division Bench vide its judgment dated 2.5.2011 in writ petition No.14185 of 2011-Ved Prakash Vs. Addl. District Magistrate has laid down as follows:
"In view of the proposition as laid down by the Apex Court in the aforesaid case, it is clear that there is no limitation for making an application under Section 30 of the Act, and further if any right is acquired subsequent to award also a reference can be made. However, the important distinction under Sections 18 and 30 of the Act, is that under Section 18 the Collector is bound to make a reference on a petition filed by person interested, but the Collector under Section 30, of the Act is not bound to make a reference and he may relegate a person raising dispute as to the apportionment to adjudicate the dispute in a suit. It is useful to reproduce the relevant observation in this context in paragraph 13 which is quoted below:
"Again under S.18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under S.30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award."
The Division Bench judgment of the Patna High Court in the State of Bihar Vs. Smt. Banarasi Devi (supra) has also laid down that there is no period prescribed for reference under Section 30 of the Act. The judgment of the Guwahati High Court in Mrs. Ka Kriksibon Kharkongor (supra) had also occasion to consider Sections 18 and 30 of the Act. In the said case, the Guwahati High Court also held that the Collector under Section 30 of the Act, 1894 has the judicial discretion to refer or not to refer the dispute. Following was laid down in paragraph 13 which is quoted below:
"13. The exercise of power under Sec.30 to refer the dispute is discretionary, the Collector may, but is not bound to, exercise that power. The Supreme Court also did not agree that the power under Section 30 has to be exercised on a motion within the period prescribed by Section 18 (2) of the Act and ruled that the powers exercisable by the Collector under Section 18 (1) and Section 30 are distinct and may be invoked in contingencies which do not over lap. It has, therefore, to be held that the Collector erred in rejecting the applications dated 12-9-1977 and 30-11- 1977 under Section 30 of the Act as barred by limitation. Mr. Medhi's contention that the petitioner is not a person interested has also to be rejected being contrary to the principles of natural justice, equity and good conscience and in view of the definition of 'person interested' in Section 3 (b) of the Act to include all persons claiming an interest in compensation to be made on account of acquisition under the Act."
A Division Bench judgment of this Court in Prem Raj Singh's case (supra) has also considered Section 30 of the Act, 1894. Following was laid down by the Division Bench in paragraphs 5 and 6 which are quoted below:
The SLAO had considered the objection raised by the petitioners and rejected the same finding the objection without any force. The SLAO has noted that registered power of attorney was executed by Yad Ram and Parsadi and on the basis of power of attorney, the sale deed was executed on 20.4.1996 on the basis of which mutation order was also passed on 5.12.1998. The SLAO has noted that the power of attorney was registered before the Sub Registrar and no steps were taken for cancellation of power of attorney. The SLAO committed no error in rejecting the objection of the petitioner and accepting the claim of compensation of respondent no.3 in the facts of the case and on the basis of relevant material which were brought on record.
As noted above, in the counter affidavit, respondent no.3 has brought on record the relevant audit report for the year 1993-94 and audited balance sheet of transaction about the payment made to Parsadi. The said documents clearly support the submission of respondent no.3 that before execution of the power of attorney, the executant has received consideration, hence the power of attorney has become irrevocable. The SLAO has exercised his discretion on the basis of relevant facts and material brought on record in rejecting the objection of the petitioner.
As observed above, it is not obligatory in each and every case to make a reference under section 30 by the SLAO. We are satisfied that the discretion exercised by the SLAO in rejecting the objection of the petitioners and in not making a reference under section 30 cannot be said to be erroneous.
In view of the foregoing discussion, we see no good ground to quash the orders dated 25.10.2007 and 19.11.2007 impugned in both the above writ petitions respectively. We, however, make it clear that it is always open to aggrieved party to get his right adjudicated by a competent civil court.
Subject to the observations as made above, both the writ petitions are dismissed.
Order Date :- 18.9.2012/VPC