1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1685 of 1996 Smt.Champabai Dattu Kharpatil & ors... Appellants versus Namdeo Gajanan Madhavi & ors. .. Respondents ... Mr.G.S.Godbole for the appellant Mr.R.S. Thakur for the respondents. CORAM : D.G. KARNIK, J DATED : 24th November 2008 JUDGEMENT:- JUDGEMENT:- JUDGEMENT:- 1. Heard both sides. 2. This appeal is directed against the judgement and order dated 25th March 1991 passed by the Joint District Judge, Thane in a reference under section 30 of the Land Acquisition Act. 3. Land bearing Gut no.86 (Part) at Diva 2 admeasuring 2 acres and 22 gunthas (for short "the suit land") was acquired by the State for New Bombay project. A notification under section 4 of the Land Acquisition Act was issued on 3rd February 1970 and final award was passed on 11th April 1986 awarding compensation of Rs.64,400/-. There was a dispute between Namdev Gajanan Madhavi, the respondent no.1 herein, and Dama @ Damu Mankya Kharpatil and others about the ownership and title to the suit land. In view of the said dispute as to the title and the person entitled to the compensation thereto, the Collector referred the matter to the District Court u/s.30 of the Land Acquisition Act. By an order dated 25th March 1991, the Reference Court held that Namdeo Ganjan Madhavi, the respondent no.1 herein was entitled to receive the entire compensation of Rs.64,400/-. Aggrieved by the decision, the appellants have filed the present appeal. 4. In order to decide the appeal, it is necessary to refer the few other facts. The suit land originally belonged to Ramchandra Baburao Anjurkar. Smt. Kamtibai Kharpatil was cultivating it as a tenant. In an enquiry u/s.32 of the Bombay Tenancy and Agricultural Land Act (for short "the Tenancy Act") she was declared to be a tenant purchaser of the said land. She thus was the owner 3 of the suit land when the notification for acquisition u/s.4 of the Land Acquisition Act was issued. Before completion of the acquisition proceedings she orally transferred the suit land in the name of her brother’s son, the respondent no.1 herein. No registered instrument of transfer was executed by Kamtibai. However, the land was transferred in the revenue records vide mutation entry no.735 which states that Kamtibai was an aged widow and the respondent no.1 who was son of her brother was looking after her the land and hence the suit land was transferred in his name. After publication of the award, Rama Kharpatil and Damu Mankya Kharpatil (hereinafter referred to as objectors) who are the sons of the two brothers of the husband of Kamtibai raised an objection for payment of compensation to the respondent no.1 alleging that on death of Kamatibai they had inherited the suit land and entitled for payment of compensation. They further contended that the respondent no.1 was not an heir of Kamatibai and was not entitled to receive the compensation. In view of this dispute, reference was made by the Collector to the District Court for decision u/s.30 of the Land Acquisition Act. 5. The objectors however did not appear before 4 the District Court and the reference was heard ex-parte or in the absence of objectors. After hearing the respondent no.1 reference court held that as the suit land was transferred in his name vide mutation entry no.735 in the revenue records the respondent no.1 was entitled to receive the compensation. It further held that since the objectors had remained absent and had not adduced any evidence the respondent no.1 alone would be entitled to the compensation. After the decision of the Reference Court, the widow and son of another brother of the husband of Kamtibai have filed this appeal with the leave of the court. 6. Respondent no.1 raised a preliminary objection for the maintainability of the appeal. He submitted that the present appellants were not the parties to the reference u/s.30 of the Land Acquisition Act. Only the children of one of the brothers of the husband of Kamtibai had objected to payment of the compensation to the respondent no.1 and therefore only they (the objectors) were entitled to file an appeal. The present appellants viz. the widow and the son of another brother of the husband of Kamatibai had not raised any objection to the award nor had they applied for a reference u/s.30 of the Land Acquisition Act. Therefore, they have no 5 right to file an appeal. The appellants had applied to this court vide Civil Application St.No.30015 of 1996 (subsequently numbered as Civil Application no.61 of 1998) for permission to file an appeal against the judgement and order dated 25th March 1992 passed by the Reference Court. After hearing the respondent no.1 herein, by an order dated 18th December 1996, a Division Bench of this Court granted permission to the appellants to file an appeal as aggrieved persons. That decision was not appealed against and has become final. In view of the fact that Division Bench has granted permission to the appellants to file the appeal, it cannot be said that the appellants are not the persons aggrieved and are not entitled to file an appeal. 7. Learned counsel for the respondent then submitted that in any event the Reference Court could not have considered the alleged claim of the present appellants as they were not parties to the reference u/s.30 and therefore, the decision of the Reference Court cannot be interfered with at their instance. In support, he referred to and relied upon two decisions of the Supreme Court rendered in Ambey Devi vs. State of Bihar, (1996) 9 SCC 84 and Sharda Devi Vs. State of Bihar,(2003) 3 SCC 128. Per Contra, Mr.Godbole learned counsel appearing for the 6 appellants relying on the decisions of the Supreme Court in Baldev Singh Vs. Surinder Mohan Sharma & Ors, (2003) 1 Supreme Court Cases 34 submitted that an appeal can always be filed by a person aggrieved. Since the Division Bench of the Court after hearing the respondent no.1 has granted permission to the appellants to file an appeal, it cannot be disputed, atleast before this Court, that the appellants are not the persons aggrieved and the appeal is not maintainable. He further submitted that if the appellants were not allowed to challenge the decision of the reference court on merits on the ground that their names do not specifically appear in the reference u/s.30 then the very purpose of the grant of leave to appeal would be defeated and therefore appellants must be heard on merits. Also relying upon certain passages from the decision of the Supreme Court in Sharada Devi Vs. State of Bihar (Supra), he submitted that the appellants were entitled to contend that the compensation was payable to them. Mr.Godbole also referred to and relied upon a decision of the Supreme Court in Dr.G.H. grant Vs. State of Bihar reported in AIR 1996 SC 237. 8. In the case of Dr.Grant (Supra) a three Judge Bench of the Supreme Court has held that the scheme of the Land Acquisition Act is that all 7 disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by that Court. Jurisdiction of the Reference Court is not restricted to cases of apportionment but extends to adjudication of disputes as the persons who are entitled to receive compensation and there is nothing in section 30 of the Land Acquisition Act which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved. The Court further held that the Collector has no power to finally adjudicate upon the title to the compensation but that dispute has to be decided in a reference u/s.18 or u/s.30 of the Land Acquisition Act or in a separate suit. 9. In Sharda Devi Vs. State of Bihar & Anr, a two Judge Bench of the Supreme Court, after referring the decision of the Supreme Court in Dr.G.H. Grant (Supra), in paragraph no.26 of its decision observed that section 30 of the Land Acquisition Act was not confined in its operation only to "persons interested". It would be available for being invoked by the "persons interested" if they were neither 8 present nor represented in the 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 giving rise to a claim in compensation which has already been determined. Such a person can also have recourse to section 30 of the Land Acquisition Act. It is thus clear that even a person who has acquired interest in the property post-award can make an application for apportionment of compensation u/s.30 of the Land Acquisition Act. 10. In view of the decision of the Supreme Court in case of Dr.G.H.Grant (Supra) and Sharda Devi (Supra) it must be held that section 30 of Land Acquisition Act enables a person claiming an interest in the compensation, whether such interest has arisen on account of an event pre-award or post-award, can make an application to the Collector for a reference u/s.30. Such application can be oral and there is no period of limitation for making of such an application. If such an application is made and reference is not made by the Collector, the person can approach the High Court in writ jurisdiction, without prejudice to his any other rights or remedies, for a direction to the Collector to make a reference. A request made by a person interested in 9 the compensation to the Collector is ordinarily required to be accepted by the Collector failing which his inaction in making a reference can be subject matter of a writ jurisdiction. It is in the light of these principles one has to look to the reference which was made by the Collector in the present case. 11. Kamatibai died in the year 1983 during the pendency of the Land Acquisition proceedings before making of the award dated 11.4.1986 Mutation entry no.774 was effected on 5.4.1984 recording names of appellants and other heirs of husband of Kamatibai in respect of her other land bearing S.No.359. After making of the award, an application was made by some of the heirs of the husband of Kamtibai to make a reference. They claimed compensation in preference over the children of her own brother. The suit land was a self acquired/separate property of Kamtibai as she had become a tenant purchaser under the Tenancy Act. Under clause (b) of sub-section (1) of section 15 of the Hindu Succession Act, in the absence of any children including children of any pre-deceased son or daughter and the husband, the suit property would devolve upon the heirs of the husband in preference over her own heirs i.e. the respondent no.1 who is the son of her brother. That was the claim made in 10 an application for reference to the Collector. May be that the application was made by only by Damu Mankya Kharpatil and Kanha Rama Kharpatil but that was an application made in the capacity as heirs of husband of Kamtibai. It was for the benefit of all the heirs of the husband of Kamtibai. As such, the Court was required to consider not only the claim of Damu and Kanha but of all the heirs of the husband of Kamtibai. Thus, the present appellant no.2 who is the cousin of Rama and Damu and son of another brother of the husband of Kamtibai was entitled for his claim for a share in the compensation being considered by the reference court. In any event as held by the Division Bench, he has a right to file an appeal. 12. The reference Court has referred to two circumstances for deciding the claim in favour of the respondent no.1. It has firstly held that the land was transferred in the name of respondent no.1 in the revenue records and therefore, respondent no.1 was prima facie the owner. Secondly, it has observed that Dama @ Damu did not appear before him at the hearing and he had failed to show that respondent no.1 whose name was entered into the records of rights as an owner was not entitled to compensation. It is settled principle of law that entries in the 11 revenue records are made for fiscal purposes and do not confer any title. Therefore the respondent no.1 could not have been held to be the owner merely on the basis of entry of his name made vide mutation entry no.735. Furthermore, mutation entry no.735 shows that there was no written instrument of transfer of the suit land in his respondent no.1 was recorded merely because Kamtibai had become old and he was looking after her. Certainly, this did not amount to transfer of the uit land in his favour. It may also be noted that the land was acquired by Kamtibai under the Bombay Tenancy and Agricultural Lands Act, 1948 and u/s.43 thereof she could not have been transferred the same without prior permission of the Collector. Therefore, the mutation entry no.735 by which the name of respondent no.1 was entered in the record of rights does not confer any title on the respondent no.1. As the Collector had made a specific reference to the District Court to adjudicate and decide upon the dispute between the respondent no.1 and the heirs of the husband of Kamtibai, the reference Court was required to adjudicate upon it and ought not to have decided the reference merely on the basis of the mutation entry no.735. 13. In the facts and circumstances of the case 12 remand has become necessary. There were two competing claims, one by the respondent no.1 who claimed to be the son of the brother of Kamtibai and appellants and others who claim as heirs of the husband of the Kamtibai. Their rights would have to be decided afresh after giving opportunity of hearing to all of them. 14. Appeal is accordingly allowed and the matter is remanded back to the reference Court for deciding it afresh after giving opportunity to the appellant and other heirs of the husband of Kamtibai who chose to appear before it for adjudication of their claim. Since the matter is old, reference Court would do well in deciding the matter after remand as early as possible and preferably within one year of receipt of the writ of this court. 15. Learned counsel for the respondent no.1 prays for stay of the operation of this order in order to enable him to challenge it in the superior court. The operation of this order is stayed for a period of eight weeks. (D.G. KARNIK, J)