CW 1778/99 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1778/1999 Jodha Versus Jaipur Development Authority & Ors. Date of Order ::: 24/07/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Ashok Gaur, for petitioner Mr. Kamlakar Sharma, for respondent No.4-Samiti Mr. Mahendra Goyal for respondent JDA Mr. NL Agrawal, for respondent No.11 to 15. Instant petition has been filed by Khatedar & seller of his half share (24 bighas & 8 biswa) in agricultural land bearing Khasra Nos.201 & 202 measuring total 48 bighas 16 biswa situated in village Khatipura Beed, Tehsil/ District Jaipur, seeking mandamus against respondent No.3 (Land Acquisition Officer, JDA) to refer the dispute to Civil Court arising out of Award dt.26/06/89 (Ann.1). Notification U/s 52(2) of Rajasthan Urban Improvement Act, 1959 (“UI Act”) was issued and published in official gazette dt.10/10/79 intending to acquire agricultural land situated in village Khatipura Beed including land alleged to be share of petitioner in Khasra NO.201 & 202 measuring 24 bighas 8 biswa. It was followed by notification dt.20/04/84 U/s 52(1) declaring the acquired land being needed for public purposes; and CW 1778/99 //2// being vested in State Government. Thereafter notice dt.21/04/87 (Ann.R.5/3) U/Ss 9 & 10 of the Land Acquisition Act, 1984 (“LA Act”) was issued to Khatedar (petitioner) by respondent-3 (LAO) for submitting claim for determination of compensation; and after considering respective claims and objections filed by “persons interested”, Award dt. 26/06/89 (Ann.1) was passed putting condition that payment of compensation would be made only after production of title over the acquired land in dispute. Petitioner alongwith Hathroi Girh Nirman Sahkari Samiti filed CWP-2434/92 before this Court assailing Award dt.26/06/89 (Ann.1) and prayed for inter-alia ad infra: “i) The impugned orders dt.26/02/89 may kindly be quashed and it may kindly be declared that whole of the acquisition proceedings of petitioner's land based on aforesaid notification have lapsed under the provisions of S.1-A of the Land Acquisition Act, 1984; (ii) the non-petitioners may kindly be directed to regularise the aforesaid scheme of the petitioners society in accordance with law; or alternatively, the scheme of petitioner society may kindly be regularised in accordance with provisions of the order dt. CW 1778/99 //3// 31/01/1990 and if at all necessary by de-acquiring the aforesaid land.” In CWP-2434/92, it had been pleaded by petitioner in para 2 that the housing society approached the petitioner for purchase of land for its purpose and after negotiations, an agreement was entered into between the society & petitioner-khatedar of land in dispute on 11/05/80, whereby it was agreed to sell the land bearing Khasra NO.201 & 202 measuring 24 bighas 8 biswas situated in village Khatipura beed (Jaipur) for a consideration of Rs. 75,000/- per bigha and possession whereof was also handed over to the housing society. It was also pleaded in para 13 of CWP- 2434/92 inter-alia that petitioner Society after taking possession of the land chalked out plan of housing scheme dividing it into 347 plots; and allotted the plots to its members who accordingly are in possession whereof. CWP- 2434/92 came to be dismissed on 27/08/97 for want of prosecution. Thereafter petitioner filed another CWP-81/97, inter-alia pleading therein that he was in possession of some part of land of Khasra NO.201 & 202 but respondents State & JDA were intending to dispossess him from the land and inter-alia prayed ad infra: CW 1778/99 //4// “(i) to issue an appropriate writ, order, or direction in the nature thereof, and thereby direct the respondents to not to interfere in possession of the petitioner over the land bearing khasra NO. 201 & 202 measuring 48 bighas & 17 biswas situated in village Khatipura, Tehsil & district Jaipur; (ii) to issue any other appropriate writ, order or direction which the Hon'ble Court deems just and proper may also be passed in favour of the petitioner and costs be also awarded.” CWP-81/97 was dismissed on merits with costs of Rs.5,000/- by this Court vide order dt. 31/03/97. Instant petition has been filed with the grievance that the LAO be directed to refer the matter to the Civil Court with regard to adjudicate title of the land in question in terms of Award dt.26/06/89 (Ann.1). It has been inter-alia pleaded that petitioner received a notice dt.09/12/98 (Ann.3) issued by respondent JDA, calling upon him to submit documents relating to title of Khasra No.201 & 202, to which reply was also filed by him and as the State Government took decision to allot 12% of developed land in lieu of cash compensation; CW 1778/99 //5// therefore, he being khatedar of land in question acquired by respondents State, all agreements having been entered into during intervening period may be treated to have been revoked and thus reiterated while making further representation dt.18/12/98 (Ann.5) alongwith supporting documents and since dispute with regard to title could not have been settled, he has raised grievance for making reference to the Civil Court. In their reply, respondents-State inter-alia averred that in order to avoid unnecessary litigation and delay in acquisition of the land, State Government took policy decision to take possession of the acquired land by entering into agreement with the land holder, for which guidelines have been issued from time to time; while vide circular dt. 02/03/95 (Ann.R.1), the Government decided that if Khatedar is ready to surrender entire land under acquisition then in lieu of compensation 12% of land under acquisition will be allowed to Khatedar after development. Vide circular dt.22/01/96 (Ann.R.2) it was further clarified that policy decision (Ann.R.1) would also be applicable to those cases wherein Award was already passed but compensation has not been CW 1778/99 //6// paid so far - in pursuance whereof, the JDA issued notice (Ann.R.3) published in daily newspaper Rajasthan Patrika on 03/10/96 pointing out that persons named in the notice being as legal representatives of Awardee may claim 12% developed land in lieu of monetary compensation and may also file copy of agreement with the JDA; and all those having any objection may also file their counter claim. Respondents further averred that pursuant to public notice (Ann.R.3), large number of persons filed their claims and since there was dispute as regards title of land in question bearing Khasra NO.201 & 202, letter dt.09/12/98 (Ann.3) was issued to respective claimants including petitioner to submit proof of their title over the land in dispute – in pursuance whereof, petitioner filed application stating that if the LAO is not able to decide dispute about title over the land in dispute, matter be referred to Civil Court. Respondents further averred in additional pleas that representation was also received from Jagdamba Colony Vistar Vikas Samiti having been addressed to Commissioner JDA, inter-alia stating therein that land in Khasra NO.201 & 202 measuring 48 bighas 13 CW 1778/99 //7// biswas situated in village Khatipura Beed was sold by Jodharam through property dealer Dashrath Singh for a consideration of Rs. 75,000/- per bigha, for which an agreement was executed on 11/05/80 (Ann.R.10) in favour of Hathroi Grih Nirman Sahkari Samiti, which in turn sub-divided and allotted plots to its members; in such circumstances, petitioner after having entered into agreement on 11/05/80 and having taken the value of his land from the society, is not entitled to any compensation. In support whereof, respondents have produced copy of affidavit dt.14/08/89 (Ann.R.11) of petitioner wherein he deposed of having sold and handed over possession of his land to the housing society and was thus having no interest over the land in dispute. At the same time, reply has been filed by respondent NO.4 (Jagdamba Colony Vistar Vikash Samiti) reiterating therein that agreement was executed by petitioner in favour of housing society on 11/05/80 in pursuance whereof, possession of the land was also handed over by him and after demarcating & sub- dividing the land into plots, the same were allotted to members of housing society. The same is the reply filed by added respondent CW 1778/99 //8// Nos.5 to 10. However, respondent JDA has filed affidavit dt.26/03/09 inter-alia pointing out that after passing of the Award dt.26/06/89 (Ann.1) by LAO, deposited amount of compensation to the tune of Rs.36,91,517/- through cheque to the Civil Judge Jaipur City vide letter dt.10/09/91 (Ex.R.1) and the petitioner was also informed vide letter dt.21/09/91 (Ex.R.2). Since no one came forward before Civil Judge to claim compensation, the JDA later on requested vide letter dt.19/02/99 (Ex.R.3) to the Civil Judge to return the cheque amount of compensation since dispute with regard to title over the alleged acquired land was not settled and other Khatedar/ persons interested have submitted their claims for 12% developed land in lieu of cash compensation; and in pursuance whereof, Civil Judge sent back the amount of compensation vide letter dt.09/04/99 (Ex.R.4.). It has also been deposed that the JDA has reserved 12% developed land for allotment to claimants on account of acquisition of the land of Khasra No. 201 & 202 measuring 48 bighas 16 biswa in village Khatipura Beed, Jaipur and this allotment would be made only CW 1778/99 //9// after dispute being resolved inter se between the claimants, as is evident from letter dt. 31/07/2000 (Ex.R.5). Counsel for petitioner submits that once LAO arrived at conclusion that there was dispute about apportionment of compensation, he was under obligation to refer the matter to the competent civil court having jurisdiction for adjudication as contemplated U/s 30 of LA Act. Counsel further submits that there is no limitation provided for making reference U/s 30 of LA Act; since LAO himself has found himself incompetent to decide title for apportionment of compensation; hence, was under obligation to reference the matter immediately to competent civil court but having failed to discharge its legal duty, for which petitioner could not be penalised and even if there is any delay; inasmuch as in absence of matter being referred to the competent civil court, right having accrued to him under law has been seriously prejudiced and infringed; as he has been deprived of 12% developed land in lieu of cash compensation, to which he is entitled for under law but nothing has been paid to him and thus action of respondents is in clear violation of Art.14 of the Constitution. CW 1778/99 //10// Counsel further submits that once the JDA deposited amount of compensation before civil judge as is evident from letter dt. 10/09/91 (Ex.R.1) annexed with additional affidavit, no notice was issued by civil court of reference being made by as is evident from letter dt.10/09/91 (Ex.R.1.) thus, competent civil court may be directed to adjudicate reference sent by LAO on merits. On the other hand, respondents raised preliminary objection that the Award itself was challenged by petitioner in CWP-2434/92 along with Hathroi Grih Nirman Sahkari Samiti which was dismissed. Later on he preferred CWP-81/97 praying for injunction against dispossession from the land in question being intended by JDA which too was dismissed on merits with costs of Rs.5,000/- vide order dt.31/03/97; on the basis whereof, Counsel for respondents submits that present petition is not maintainable being barred by principles of res judicata seeking direction for making reference of dispute to civil court after a decade of Award being passed by the authority. That apart, when petitioner himself averred in earlier CWP-2434/92 that he had executed agreement with society on 11/05/80 and CW 1778/99 //11// submitted an affidavit in support whereof that he sold his share in the disputed land after having handed over possession whereof to the society, such grievance cannot be raised at a belated stage in seeking direction for making reference U/s 30 of LA Act to civil court for settlement of dispute about title and the conduct of the petitioner dis-entitles seeking equitable jurisdiction of this Court U/Art.226 of the Constitution of India. Counsel for respondents further submits that petitioner had an opportunity for making reference for apportionment of compensation by way of filing application before the Collector U/s 18 of LA Act; but for which, period of limitation has expired long back while reference sought U/s 30 of LA Act is not applicable in the facts & circumstances of instant case. In support, Counsel placed reliance upon decision of Apex Court in Sharda Devi Vs. State of Bihar (2003(3) SCC 128) & Meher Rusi Dalal Vs. Union of India (2004(7) SCC 362). Counsel for respondent JDA submits that since there was dispute in regard to title amount of compensation was so deposited in Civil Court in terms of S.31 of LA Act but no CW 1778/99 //12// reference was made to the competent civil court and thus after eight years, letter was sent to withdraw the amount which was received by JDA on 09/04/99 (Ex.R.4) and 12% developed land has been kept reserved in lieu of cash compensation as regards land acquired of Khasra No.201 & 202 as is evident from letter dt.31/07/2000(Ex.R.5) and since dispute of title inter se being not resolved, the land having been kept reserved by JDA could not have been allotted to the persons interested or entitled for under law. I have considered rival contentions of Counsel for the parties and with their assistance examined material on record. It is not disputed that petitioner participated in the proceedings, while the Award (Ann.1) being passed on 26/06/89. It is also evident from document (Ann.R.5/3) that notice dt.21/04/87 of proceedings initiated U/s 9 & 10 of LA Act were served upon petitioner and after opportunity being afforded to him, the Award was passed on 26/06/89 (Ann.1). It is also not the case of petitioner that he never participated in acquisition proceedings or Award dt.26/06/89 was passed behind his back. He could not say so obviously because he himself alongwith Hathroi Grih Nirman Sahakar Samiti had challenged CW 1778/99 //13// Award dt.26/06/89 by way of filing CWP-2434/92, which was indisputably dismissed for want of prosecution. It is true that cash compensation has been determined by LAO under Award dt.26/06/89 but it was observed that there being dispute with regard to title over the disputed land under acquisition, therefore, cash compensation could not have been disbursed. After the Award being passed, if at all aggrieved and petitioner intended to get cash compensation apportioned among persons interested, certainly remedy was available to him of filing application before Collector for making reference U/s 18 of LA Act. Had such an application been filed, Collector was under legal obligation to make reference having no discretion left to examine as to whether dispute is to be referred if it relates to four clauses of Reference U/s 18(1) of LA Act subject to period of limitation provided U/s 18(2) of LA Act. At the same time, S.30 of LA Act also provides of making reference if there is dispute with respect to apportionment of compensation among persons to whom it is payable and that no period of limitation is CW 1778/99 //14// provided for making reference by Collector to civil court. Apex Court in Sharda Devi Vs. State of Bihar (supra) after comparative study of Ss.18 & 30 of LA Act laid down principles and scope of these two provisions summarizing ad infra: “26. The scheme of the Act reveals that the remedy of reference u/s 18 is intended to be available only to a '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 CW 1778/99 //15// 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- CW 1778/99 //16// 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 payable. The State claiming on the basis of a pre-existing right would not be a 'person interested', as already pointed out herein above and on account of its right being pre-existing, 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 CW 1778/99 //17// 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.” Afore quoted principles have also been taken note by Apex Court in Meher Rusi Dalal Vs. Union of India, ibid, after having considered observations in G.H.Grant (Dr.) Vs. State of Bihar (AIR 1966 SC 237). Thus, it is clearly manifest from principles laid down by Apex Court (supra) that persons having participated in acquisition proceedings can apply for reference U/s 18 of LA Act, which is to be invoked when persons claiming pre-existing right and have a notice of acquisition proceedings; whereas S.30 of LA Act could be invoked only by persons having no notice of proceedings or a right has come into existence after acquisition proceedings or accrued or devolved after post-award may be determined in a reference U/s 30 depending on Collector's discretion to show indulgence, CW 1778/99 //18// without any bar as to limitation. Petitioner claiming pre-existing right not only had received a notice but also participated in acquisition proceedings wherein Award was passed on 26/06/89 (Ann.1). As observed (supra), it was never his case that there was no notice served upon him of acquisition proceedings initiated by LAO while passing of the Award. In such circumstances, remedy available to him was to invoke and apply before Collector U/s 18 of LA Act, for which period of limitation was six weeks as provided U/s 18(2) and if at all sub-section (2)(b) of S.18 is taken note of, period of limitation is six months from the date of Collector's Award. Despite remedy being available to him, no application was filed seeking reference as provided under law. As regards S.30 of LA Act, petitioner is not entitled for making reference as observed (supra) and as per law laid down, reference could have been made U/s 30 only if right being accrued or devolved post award subject to discretion of Collector depending upon facts to be examined in each case. In the opinion of this Court, petitioner cannot now seek mandamus in equitable jurisdiction U/Art. CW 1778/99 //19// 226 of Constitution of making reference for adjudication of alleged dispute as regards title over the land in dispute U/s 30 of Act. Further submission made by Counsel for petitioner is that matter was referred to Civil Court and money was also deposited, as would be evident from documents (Ex.R.1) placed by respondent-JDA on record and since no notice was served upon of the Reference which has resulted in depriving him of legitimate right and he cannot be made remediless in getting his dispute in regard to title being adjudicated by forum under law. Such a submission in the opinion of this Court is without any merit for the reason that land acquisition officer vide letter dt.10/09/91 (Ex.R.1) in fact has not made any reference to the civil court but only deposited compensation determined vide Award dt.26/06/89 U/s 31 of LA Act, because title over the acquired land having been disputed among Khatedars including Jodha & Ramsukh could not be resolved and the money was sent back to the JDA by civil court on 09/04/99 (Ex.R.4) only for the reason that no person made any reference for adjudicating the dispute about title over the acquired land. Since no reference was made to civil court U/s 18 or 30 CW 1778/99 //20// of LA Act, amount was rightly refunded back to the authority vide letter dt.09/04/99 (Ex.R.4). Even preliminary objections raised have merit and petitioner is not entitled for equitable relief as claimed. It is also settled that in every proceeding, whole of the claim which one is entitled to make, should be made and if he omits to sue in respect of any portion of the claim, he cannot later on sue for portion so omitted. If that is permitted, there will be a never ending litigation and same proceedings would be assailed by persons time and again on numerous grounds being available at its discretion. On two different occasions, he approached this Court assailing the Award dt. 26/06/89 (Ann.1) by way of filing CWP-2434/92 and CWP-81/97. First petition was dismissed for want of prosecution vide order dt.27/08/97 while second one was dismissed with costs of Rs.5,000/- on merits vide order dt.31/03/97; and if at all he was aggrieved against apportionment of compensation and if Collector failed to make any reference, he had an opportunity to raise grievance in his earlier writ petitions. In the opinion of this Court, instant petition is barred by principles U/O.2, CW 1778/99 //21// R.2, CPC and is not maintainable. Moreover, as alleged, petitioner had entered into agreement to sale of his share in land of Khasra NO.201 & 202 after accepting sale consideration from the housing society, which too he has admitted in his affidavit (Ann.R.11) - copy whereof has been filed by State Govt alongwith reply, deposing that after entering into agreement on 11/05/80, he had handed over possession of the land in dispute to Hathroi Grih Nirman Sahakar Samiti and thus has no relation or interest over the land; and amount of compensation should also be paid to the society. These facts clearly depict that petitioner loose his, right, title & interest in the land after having entered into agreement to sale executed in favour of the society. Consequently, writ petition fails and is hereby dismissed. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.21/1778CW99RsrJul24.doc