IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 200 of 2003 Reserved on.: 25.6.2007. Date of decision : 21.8.2008. Charan Dass. Appellant. Versus State of H.P and others Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 yes For the Appellant: Mr. Romesh Verma, Advocate. For the Respondents : Mr. Vivek Singh Thakur, No. 1 and 2. Additional Advocate General. For the Respondent Mr. Tarlok Chauhan, Advocate. No. 3. Deepak Gupta, J. This regular second appeal was admitted on the following substantial questions of law:- 1. Whether the Courts below were wrong in dismissing the suit of the appellants, without giving any findings on all the issues on merits and thus the jurisdiction has not been exercised in accordance with law? 2. Whether the plaint could be rejected under the provisions of Order-7, Rule 11 CPC even if the Court had no jurisdiction or the plaint was required to be returned for presentation before the Court having the jurisdiction? The brief facts, necessary for the decision of the case, are that the appellant (here-in-after referred to as 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes . 2 the plaintiff) filed a suit for permanent prohibitory injunction restraining the State of Himachal Pradesh and the Land Acquisition Collector, HPPWD, (Respondents No. 1 and 2) from making or releasing the compensation amount, solatium, etc. to the defendant Shri Jagat Ram in respect of 8 biswas of land being part of the acquired land. The plaintiff claimed that he alone is entitled to the compensation in respect of this land. According to the plaintiff, proceedings under the Land Acquisition Act, 1894 (here-in-after referred to as the Act) were initiated for acquiring a large amount of land, including land comprising Khasra No. 306/1 measuring 0-3 bighas, 730/1 measuring 0-5 bighas, 731/1 measuring 1-4 bighas and 1745/729/1 measuring 0-6 bighas comprised in Khewat No. 55 and 56, Khatuni No. 79 and 81, by the State vide notification dated 11.10.1994. According to him, in the initial notification the shares of the parties were correctly depicted. However, by subsequent notification dated 14.7.1997 the respondents 1 and 2 illegally and arbitrarily reduced the area of the plaintiff by 8 biswas and added that to the area of defendant No.3. On this basis, it was alleged that the defendant No.3 is not entitled to the compensation in respect of 8 biswas of land awarded in his favour and that the plaintiff is entitled 3 to compensation in respect of 8 biswas of land. In the present case, the award was announced by the Collector on 19.8.1997. The petitioner was admittedly appearing before the Collector and filed the suit on 22.8.1997. This suit was contested by the defendants on various grounds. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendants No. 1 and 2 have illegally and arbitrarily reduced the area of 8 biswas out of Khasra No. 731/2 and the same has been inducted in Khasra No. 307, as alleged? OPP. 2. Whether the plaintiff is entitled for decree of permanent prohibitory injunction, as prayed for? OPP. 3. Whether the plaintiff is entitled for declaration, as prayed for? OPP. 4. Whether the plaintiff is entitled for demarcation of suit land, as alleged? OPP. 5. Whether the present suit is not maintainable, as alleged: OPD 1 to 3. 6. Whether the plaintiff is estopped to file the present suit, as alleged? OPD 1 and 2. 7. Whether this Court has no jurisdiction to try the present suit, as alleged? OPD 1 to 3. 8. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD-3. 9. whether the present suit is not properly valued, as alleged? OPD-3. 10. Relief. 4 The learned trial Court decided issues No. 5 and 7 only and held that the suit was not maintainable and the Court had no jurisdiction to decide the same. Therefore, the plaint was rejected and no findings were given on the other issues. The plaintiff filed an appeal. The learned lower Appellate Court upheld the judgement of the learned trial Court holding that the civil suit had not been contemplated as an alternative remedy by the apex Court. Both the Courts below have held that the Land Acquisition Act is a complete Code in itself and the remedy, if any, available to the plaintiff was only under the Land Acquisition Act and no civil suit could have been filed qua the relief claimed. Once the State acquires the land, the Collector is required to conduct an inquiry into the measurement, value and claims of the interested parties in the land. Under Section 11, the Collector is required to make an award in respect of the true area of the land; (ii) the compensation, which in his opinion should be awarded for the said land and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land. It is important to note that the Collector has to decide not only the claims of persons 5 who have appeared before him but also in respect of persons about whom he has information that they have an interest in the acquired land. Under Section 12 of the Act once the award has been filed by the Collector, it is final and conclusive evidence as between the Collector and the persons interested in respect of the true area and value of the land and the apportionment of the compensation among the persons interested. Section 12 reads as follows:- “12. Award of Collector when to be final.- (1) Such award shall be filed in the Collector’s Office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested. (2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.” Section 18 entitles any party interested in the acquired land who has not accepted the award to apply to the Collector for making a reference for determination by the Court in respect of the measurement of the land, the amount of compensation, the person to whom it is payable or the apportionment of the compensation. 6 Section 18 reads as follows:- “18. Reference to Court.- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector’s award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire.” Section 30 of the Act specifically relates to disputes as to apportionment and reads as follows:- “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.” This section provides that any person aggrieved by the apportionment made by the Collector in his award may apply to the Collector for referring such dispute to the decision of the Court. 7 Section 31 of the act deals with payment and deposit of compensation. In case the person interested and entitled to the compensation suffers from disability or the party does not consent to receive the compensation or if there be some dispute with regard to the title, the Collector is required to deposit the amount in the Court to which reference under Section 18 would lie. Section 31(2), is relevant and reads as follows:- “31(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, of 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.” A number of authorities have been cited by both sides in respect of the aforesaid provisions of law. The basic authority in this regard is Dr.G.H.Grant vs. The State of Bihar, AIR 1966 Supreme Court 237. The 8 majority judgement in this case was delivered by Hon’ble Mr. Justice J.C.Shah. In para 13, 18 and 19 the apex Court held as follows:- “ 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 devolved 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. 9 18. The scheme of the Land Acquisition Act is that all 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 the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the persons who are entitled to receive compensation, and there is nothing in S. 30 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. 19. It was strongly pressed that under S. 31 of the Land Acquisition Act the Collector is bound to tender payment of compensation awarded by him to the persons entitled thereto according to the award and that implied that a right in the amount of compensation arises to the person to whom compensation is directed to be paid under the award, and, therefore, the only persons who can raise a dispute under S. 30 are those whose names are set out in the award. This contention stands refuted by the plain terms of S. 30. The Collector is not authorised to decide finally the conflicting rights of the persons interested in the amount of compensation: he is primarily concerned with the acquisition of the land. In determining the amount of compensation which may be offered, he has, it is true, to apportion the amount of compensation between the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have appeared before him. But the scheme of apportionment by the Collector does not finally determine the rights of the persons interested in the amount of compensation: the award is only conclusive between the Collector and the persons interested and not among the persons interested. The Collector has no power to finally adjudicate upon the title to compensation: that dispute has to be decided either in a reference under S. 18 or under S. 30 or in a separate suit. Payment of compensation, therefore, under S. 31 to the person 10 declared by the award to be entitled thereto discharges the State or its liability to pay compensation (Subject to any modification by the Court), leaving it open to the claimant to compensation to agitate his right in a reference under S. 30 or by a separate suit.” Perusal of para 13 quoted here-in-above shows that a person who was appearing before the Collector in the proceedings upto the stage of Section 11 or on whom notice has been served under sub-section (2) of Section 12 must apply to the collector within the time prescribed under Section 18(2) to refer the matter to the Court, if he does not accept any portion of the award. However, a person who has not appeared before the Collector or who has not been served with notice of filing of the award can raise a dispute with regard to apportionment under Section 30 also. In para 18, the apex Court has laid down that the scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by following the procedure prescribed under the Act. However, a reading of para 19 the judgement gives the impression that the scheme of the Act is that the Collector is not the final adjudicator of the rights of the parties. The Court has held that the Collector does not finally determine the rights of the parties interested in the 11 amount of compensation. It has also been held that in terms of Section 12 the award is only conclusive between the Collector and the persons interested and not amongst the persons interested. The apex Court further held that the dispute has to be decided either in a reference under Section 18 or under Section 30 or in a separate suit. It has further been held that once the compensation has been paid under Section 31, the aggrieved party can claim compensation and agitate his right in a reference under Section 30 or even by way of a separate suit. The observations in para 19 have to be read in the context of paras 18 and 19 only. In this portion of the judgement, the apex Court was basically dealing with the question as to how the amount deposited under Section 31 is to be dealt with. In this part of the judgement, the apex Court held that any person aggrieved by the payment or deposit of compensation under Section 31 can agitate his right in a reference under Section 30 or by separate suit. However, the Court in this para did not specifically deal with the question as to whether a person who had appeared before the Collector or who had been served with notice of filing of the award under Section 12 could raise a dispute under Section 30. 12 In Arulmighu Lakshminarasimhaswamy Temple Singirigudi vs. Union of India and others (1996) 6 SCC 408, the apex Court held as follows:- “The question, therefore, would be: what would be the proper procedure to be adopted in case of dispute as to the title of the land acquired under the Act? The learned Single Judge declared title of the petitioner in the writ petition and the Division Bench directed the civil court to decide the title. Both views are obviously erroneous in law. The Land Acquisition Officer has to determine the extent of the land, the persons entitled to compensation and the compensation to be determined under Section 23(1) of the Act. If he finds that there is any dispute as to the person entitled to receive the compensation, necessarily he has to deposit the amount under Section 31 of the Act into the court to which reference would lie. On such a dispute having arisen, he has to make a reference to the court under Section 30 of the Act to decide the dispute between the competing persons who set up rival title to the compensation. Under those circumstances, the only legal course open is that a direction be issued to the Land Acquisition Officer to make a reference under Section 30 to decide the inter se title to receive the compensation either by the appellant or by the fourth respondent, as the case may be and the Reference Court would decide the matter in accordance with law.” A division bench of the Punjab and Haryana High Court in Karnail Singh vs. Jagir Singh, AIR 1984 Punjab and Haryana 294, was dealing with a case in which in a family partition the acquired land was allotted to Karnail Singh. Karnail Singh did not receive any notice of the acquisition. He was neither aware about the 13 acquisition proceedings nor about the award. In the meantime, his brother defendant Jagir Singh came to know about the acquisition and he withdrew the entire amount of compensation concealing the factum of partition between the parties. The plaintiff thereafter filed a suit for recovery of the amount. The question that arose was whether such a suit was maintainable or not? The defendant contested the suit and one of the grounds raised was that the Civil Court had no jurisdiction to try the suit. The division bench of the Punjab and Haryana High Court following the judgement in Dr.G.H.Grant’s case (supra) held that the award is final so far as the Collector and the persons interested are concerned but not so among the persons interested in the land and that such persons can get the dispute resolved either by asking the Collector to make a reference or by filing a separate suit. It would, however, be pertinent to mention that Karnail Singh had neither appeared before the Land Acquisition Collector and had not received any notice of filing of the award under Section 12(2). Therefore, he definitely had a right to either seek reference under Section 30 or file a civil suit. A similar question was considered by a division Bench of the Andhra Pradesh High Court in Govindu 14 Venkata Reddy vs. K. Krishna Rao and another, AIR 1982 Andhra Pradesh 86. After considering all the relevant statutory provisions as well as the law laid down by the apex Court the Andhra Pradesh High Court held as follows:- “8. A reading of the above provision shows that, while passing the award the Collector (Land Acquisition Officer) has to enquire into (i) the objections submitted by the persons interested, to the measurements made under Section 8; (ii) the value of the land on the date of notification under Section 4(1); and (iii) the respective interests of the persons claiming the compensation. After such enquiry, he has to make an award under his hand, stating (i) the true area of the land; (ii) the compensation determined by him; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, whose claims, he has information, whether or not they have respectively appeared before him. The power vested in the Collector to enquire into the respective claims of the persons claiming interest, necessarily means that he has the power to enquire into and determine the disputed claims and disputed questions of title as well. It cannot be said that the Land Acquisition Officer has no jurisdiction to go into the disputed claims or disputed questions of title or that, as soon as such a dispute arises, he is under an obligation to make a reference to the Civil Court. It is true that the decision rendered by him, whether on the question of the area of the land, the quantum of compensation, or on the question of apportionment, is not final and he is under an obligation to make a reference to Civil Court with respect to the aforesaid questions if an application in writing is make to him under, and in accordance with Section 18. Once an application is make to him to make a reference to Civil Court under Section 18, he has no discretion in the matter; he is bound to make such a reference. But that does not mean that, whenever, disputed questions as to title arise before him, the Land 15 Acquisition Officer has no choice except to refer the matter to Court. At the same time, we must hasten to add, he is also under no obligation to decide or determine such disputed questions. A reading of Section 30, together with Sections 11 and 18 makes it clear that, while it is obligatory upon the Collector to determine the true area of the land acquired and the amount of compensation payable for such land, he has a discretion either to go into the disputed questions of tile and apportionment, or to refer the same to Civil Court for decision. If the Land Acquisition Officer is of the opinion that the dispute as to title (apportionment) arising before him involves complicated questions of fact and/or law and that, it is desirable that those questions should be enquired into by a Civil Court, he can refuse to decide the question and refer the same for decision to Civil Court. In such a case he has to act under Section 30. It is obvious that when he refers the dispute as apportionment to Civil Court, he will also send the amount of compensation, determined by him, to the Civil Court. 9, 10, 11, 12, 13, xxxxxx. 14. The above observations make it clear that the only remedy of person who was present or represented before the Collector during the award proceedings if he is aggrieved with the apportionment and/or by the determination on