1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.4540/2001 The Mahaveer Housing Cooperative Society Ltd. Versus The State of Rajasthan and others DATE OF ORDER --- JULY 21,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.R.K.Goyal with Mr.S.M.Poddar, for the petitioner Mr.Ravindra Pal Singh on behalf of Mr.J.K.Singhi, for the respondents No.1 and 2 Ms.Anita Agrawal on behalf of Mr.G.K.Garg, for the respondent No.3 Mr.M.Shiromani on behalf of Mr.Rajendra Prasad, for the respondents No.4 and 5 BY THE COURT (1) By this writ petition, the petitioner – The Mahaveer Housing Cooperative Society Ltd. - has challenged the order dated 17.7.2001 (Anx.7) passed by the respondent No.3 and also prayed for a direction to the respondent No.3 to make payment of the share of respondent No.5 and his deceased mother Smt. Rampyari, to the petitioner. Alternatively, the petitioner has sought a direction to the respondent No.3 to make a reference to the civil court and in the further alternative, the respondent No.3 be directed to refund the amount drawn by the respondent No.5 . The petitioner has also prayed that the amount of 1/3rd share of Smt.Rampyari be directed to be paid to the petitioner in view of the Will executed by her. (2) Briefly stated, the facts of the case, are that on 28.7.1981, the petitioner Society agreed to purchase 14 Bighas 5 Biswas land from Mitthan Lal, ancestor of respondents No.4,5 and 6. On 6.5.1991, after the death of Mitthan Lal, respondents No. 4,5 and 6 executed sale deed in favour of the petitioner 2 Society by receiving the balance consideration and handed over possession to the petitioner. In the year 1994, Rajasthan Housing Board, respondent No.3, acquired the above land along with other land. On 2.11.1994, the petitioner Society informed the Officer on Special Duty, Rajasthan Housing Board, respondent No.3 that all the future correspondence in respect of the above land be done with the petitioner and compensation amount be paid to the petitioner. On 28.6.2000, the Officer on Special Duty, Rajasthan Housing Board passed the Award. On 2.7.2001, the petitioner Society filed a reference application under section 30 of the Land Acquisition Act, 1894 that the amount of compensation awarded in respect of the above land should not be paid to respondents and a reference be made to the civil court for apportionment of the amount of the Award. On 16.7.2001, the respondent No.5 Ram Gopal filed reply to the reference application and submitted before the O.S.D. that payment of dues of petitioner Society has been made by his brother. Respondent No.5 was granted time to file an affidavit to this effect and the next date fixed in the case was 18.7.2001. It is stated in the writ petition that contrary to the order dated 16.7.2001, without informing the petitioner Society, two orders have been passed on 17.7.2001 – (i) reference application was rejected and (ii) Cheque No.248622 dated 10.7.2001 for Rs.11,90,928/- was ordered to be given to the respondent No.5 Ram Gopal. (3) In the aforesaid facts and circumstances of the case, the petitioner Society has challenged both the orders dated 17.7.2001, which had been passed ex parte one day earlier to the date already fixed i.e. 18.7.2001, for decision on the reference application and for passing orders in the matter for disbursement of compensation. (4) The respondent No.3 has been impleaded as party in personal capacity as well as in official capacity. 3 (5) The respondents No.1 and 2 have filed reply to the writ petition to the effect that the relief claimed is against the respondent No.3 and not against the respondent No.1. (6) Respondent No.3 filed reply to the writ petition and stated therein that on the main file cover, on 16.7.2001, the respondent No.3 had mentioned the next date 17.7.2001 and at the time of dictation, he had left the place of date blank marking a line and the same was subsequently written by the Junior Accountant mentioning the next date 18.7.2001, which was not correct. However, there is no explanation as to why there are two order sheets of the same date i.e. 17.7.2001 – one relating to dismissal of the reference application and another of disbursement of the cheque of the compensation amount. (7) Submission of counsel for the petitioner Society is that once the date 18.7.2001 was fixed, as would be evident from the order sheet (Anx.6), there was no reason to take up the case on 17.7.2001 and draw the order sheet on the same page whereby the reference application was dismissed. Thereafter again, on the next page, there are two order sheets one is of 17.7.2001 and another is of 25.7.2001. By the order sheet dated 17.7.2001 cheque of Rs.11,90,929/- was ordered to be paid to Ram Gopal respondent No.5. Counsel submits that the aforesaid action of the respondent No.3 is arbitrary and against all norms of drawing the order sheet in chronological manner and also drawing single order sheet in a day and therefore, the respondent No.3 has acted mala fide. (8) Submission of counsel for the respondent No.3 is that the date in the order sheet dated 16.7.2001 was left blank and subsequently, the same was filled in by the Junior Accountant and the respondent No.3 had signed the same. (9) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. 4 (10) Before proceeding further, it is relevant to quote Sec.30 of the Land Acquisition Act, 1894. The same is as under: Sec. 30 of the Land Acquisiton Act, 1894 “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.” (11) In my view, the action of the respondent No.3 is against the well established norms of maintaining order sheets in a chronological manner and drawing single order sheet in a day and once, 18.7.2001 was fixed as the next date in the matter, then there was no reason for the respondent No.3 to take up the matter, that too twice, on 17.7.2001 and to draw two order sheets on 17.7.2001, one rejecting the reference application and another for disbursement of the compensation amount to the respondent No.5. The averment made by the respondent No.3 that the date in the order sheet dated 16.7.2001 was left blank and subsequently, the same was filled in by the Junior Accountant and he signed the same, is not acceptable. Thus, both the orders dated 17.7.2001 are liable to be quashed and set aside. I am of the further view that the document dated 6.5.1991 (Anx.1) has been referred to as the sale deed but the same is not registered, therefore, it cannot be taken as sale deed. (12) Accordingly, the writ petition is allowed, both the orders dated 17.7.2001 (Anx.7) are quashed and set aside and the matter is remanded back to the Officer on Special Duty, Rajasthan Housing Board/Land Acquisition Officer, who is presently dealing with such matters, with a direction to decide the reference application of the petitioner Society for apportionment u/s 30 of the Act of 1894 afresh, within a period of one month from the date of receipt of certified copy of this order. (Prem Shanker Asopa) J. 5 गोpa ल