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

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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unauthorizedly withdrawn by the counsel engaged by her in that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

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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

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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

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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.

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(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

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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

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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

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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

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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

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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.

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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

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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.”

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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

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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

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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

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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

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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

petition. The petition is dismissed.

Sd/-

JUDGE

Nv* / KS*