1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7779 OF 2009 Sau. Chandrakala Babasaheb Bhosale, Age 65 yrs., Occu. Agri., R/o. Khadki Ghat, Tq. & Dist. Beed. ....Petitioner. Versus 1. State of Maharashtra through Secretary Revenue and Forest Department, Mantralaya, Mumbai - 32. 2. Land Acquisition Officer, Beed. 3. Asruba Bappa Taware, Age 30 yrs., Occu. Agri., R.o. Khadki Ghat, Tq. & Dist Beed. 4. Hanumant Bappa Taware, Age 28 yrs., Occu. Agri., R/o. Khadki Ghat, Tq. & Dist. Beed. 5. Dashrath Babu Taware, Age 65 yrs., Occu. Agri., R/o. Khadki Ghat, Tq. & Dist. Beed. 6. Umaji s/o. Dashrath Taware, Age 26 yrs., Occu. Agri., R/o. Khadki Ghat, Tq. & Dist. Beed. 7. Prakash Dashrath Taware, Age 65 yrs., Occu. Agri., R/o. Khadki Ghat, Tq. & Dist. Beed. 6 Vilas Ambadas Waghmare, Age 34 yrs., Occu. Service, R/o. Khadkighat, Tq. & Dist Beed. At Present Vimannagar, Yamuna Nagar, Pune - 14. ....Respondents. 2 Shri. S.D. Hiwrekar, Advocate for petitioner. Shri. D.R. Kale, A.G.P. for respondent Nos. 1 and 2. Shri. D.R. Jaybhar, Advocate for respondent No.3 to 8. CORAM : R.K. DESHPANDE, J. DATE : 26th July, 2010. ORAL JUDGMENT : 1. Notice in this matter was issued on14th of December 2009, in response to which Shri. D.R. Kale, the learned A.G.P. appears for respondent Nos. 1 and 2 and Shri. Jaybhar, the learned counsel appears for respondent Nos. 3 to 8. The learned counsels for the parties agree that the matter can be decided finally at the stage of admission. Hence, Rule, made returnable forthwith. With the consent of parties, the matter is decided finally. 2. This writ petition is preferred by the petitioner, who is applicant, seeking reference for apportionment of compensation under Section 30 of the Land Acquisition Act, challenging the order dated 13.8.2009 passed by the Ad-hoc District Judge -1, Beed in Land Acquisition Reference No. 247/2008. By this order, the application filed by the petitioner, Exh. 23, for joining one Vilas Ambadas Waghmare as a party respondent in the said proceedings, has been rejected. Similar was the application made at Exh. 15 by one Babasaheb Limbaji Kure. In fact the objection/reference under Section 30 of the Land Acquisition Act for 3 apportionment of compensation itself has been rejected by the impugned order. Hence, this petition is preferred. 3. The petitioner claims to be the owner of 1 H. 85 R. of land in old Survey Nos. 10 and 15 of village Khadki (Bavi), Taluka and Dist. Beed from one Jankibai Thoke under the registered sale deed dated 8.1.1981. In consolidation scheme, which took place in the year 1986, both these Survey Nos. 10 and 15 were renumbered as Gat No. 66. However, the portion of land held by the petitioner was reduced by 0.70 R. and it was added in Gat No. 63 and 101. The petitioner, therefore, raised an objection in respect thereof, which was ultimately decided by the order dated 29.1.2009 passed by the Deputy Director, Land Records, Aurangabad Region, Aurangabad. The portion of 0.70 R. which was added to Gat Nos. 63 and 101 was accordingly restored in Gat No. 66, belonging to the petitioner. This order has became final and accordingly, the entry in the record of rights has also been taken, showing the petitioner as the owner of 1 H. 85 R. of land of Gat No. 66. 4. Sometime in the year 2002 acquisition proceedings were initiated and the land admeasuring 0.70 R. was acquired from Gat No. 66. The petitioner received notice for acquisition of the said portion of the land. The petitioner responded to it, submitted its claim for compensation and accordingly, an award was passed for acquisition of the said portion of land in the year 2007. Before the award was passed, the petitioner sold 4 the land admeasuring 1 H. 1 R. out of Gat No. 66 to respondent No. 8 Vilas Ambadas Waghmare by registered sale deed dated 26.6.2006. In the award statement in form No. "E" dated 29.9.2005, the petitioner was shown to be the the owner of 0.19 R., whereas the respondent No. 8 Vilas Ambadas Waghmare was shown to be the owner of 0.51 R. of land of Gat No. 66. The petitioner, therefore, filed an objection dated 2.1.2008 for making reference for apportionment of compensation to the Special Land Acquisition Officer, Beed. It seems from this objection that the concerned Special Land Acquisition Officer made an endorsement on 2.1.2008, calling for the office note and keeping the matter on 8.1.2008. It further appears that on 3.1.2008 itself compensation was disbursed in respect of the acquisition of the land to respondent No. 8 Vilas Ambadas Waghmare for acquisition of 0.51 R. It was Rs. 45,135/-. 5. The Special Land Acquisition Officer made reference dated 5.4.2008 to the District Court for apportionment of compensation in respect of the land owned by the petitioner i.e. Survey No. 66, under Section 30 of the Land Acquisition Act. The proceedings were accordingly registered as LAR No. 247/2008 in the Court of Ad-hoc District Judge -1 Beed. 6. In LAR No. 247/2008 the petitioner filed an application, Exh. 23, for joining the respondent No. 8 Vilas Ambadas Waghmare as a party in the said proceedings under Order 1, Rule 10 of Civil Procedure Code 5 (CPC). Similarly, one another person Babasaheb Limbaji Kure was party in the said proceedings i.e. LAR No. 247/2008, also filed an application, Exh. 15, for the same relief. The learned Ad-hoc District Judge -1, Beed, by his order dated 13.8.2009, not only rejected the applications, Exhs. 15 and 23, but also rejected the objection petition filed by the present petitioner. It has been held that the dispute raised is regarding the determination of right of ownership or title in respect of 0.70 R. of land and it cannot be said to be a dispute regarding apportionment of compensation. According to the learned Ad-hoc District Judge - 1, the dispute raised is of civil nature and cannot be raised in a reference petition. It has further been observed that it was an application under Order 1, Rule 10 of CPC and the dispute which is likely to be raised is regarding the ownership of 0.70 R. of land in Gat No. 66. On this count the applications as well as the reference is rejected by the Ad-hoc District Judge - 1, Beed. 7. Shri. Hiwrekar, the learned counsel appearing for the petitioner has urged that the dispute is regarding apportionment of compensation and not in respect of the ownership or title of 0.70 R. of land out of Gat No. 66. He submits that in fact the Special Land Acquisition Officer himself should have made the respondent No. 8 Vilas Ambadas Waghmare as a party in the reference proceedings, as his name is shown in the statement of award dated 29.9.2005. He further submits that once the objection was raised in respect of apportionment of compensation, 6 then there was no question of disbursing the amount of Rs. 45,135/- to the respondent No. 8 Shri. Vilas Ambadas Waghmare by the Special Land Acquisition Officer. He submits that the Special Land Acquisition Officer, in spite of being aware that the dispute regarding apportionment of compensation in respect of 0.70 R. of land out of Gat No. 66 has been raised, has shown undue haste in disbursing the amount immediately to the respondent No. 8. He further submits that the learned Ad-hoc District Judge-1 was wrong in holding that the dispute pertains to the ownership and title of land, admeasuring 0.70 R. out of land Gat No. 66, whereas in fact, the dispute is regarding apportionment of compensation. 8. Shri. Jaybhar, the learned counsel for the respondent Nos. 3 to 8 has refuted the aforesaid contentions and has supported the order passed by the Trial Court. He has urged that the objection pertains to the ownership of the 0.70 R. land out of land Gat No. 66 and therefore, the order passed by the Trial Court is correct and proper. He submits that name of Vilas Ambadas Waghmare is shown in the statement of award as the owner of 0.51 R. of land of Gat No. 66 and there was no dispute in respect of payment of compensation to him, but the dispute was only in respect of 0.91 R. of land in respect of which the petitioner is owner. He further submits that he never disputed the ownership of the petitioner over the land admeasuring 0.91 R. and the petitioner would be at liberty to get the apportionment of compensation, done in the proceedings. 7 9. Perusal of the objection dated 2.1.2008 filed by the petitioner, by which she has sought reference under Section 30 of the Land Acquisition Act, makes it clear that the petition is in respect of apportionment of compensation in respect of land 0.51 R. also out of Gat No. 66. It cannot, therefore, be said that the objection of the petitioner was only in respect of apportionment of compensation of acquisition of 0.91 R. land from Gat No. 66. Once this objection was lodged on 2.1.2008, there was no propriety and justification for the Special Land Acquisition Officer to disburse the amount of compensation of Rs. 45,135/- in respect of 0.51 R. land out of Gat No. 66. There seems to be undue haste in disbursement of compensation by the said authority. Be that as it may. Once the statement of award shows the name of the petitioner as well as the respondent No. 8 Vilas Ambadas Waghmare, it was not for the Special Land Acquisition Officer to decide to disburse the compensation in respect of any portion of land out of land Gat No. 66, which was the subject matter of acquisition. In the proceedings under Section 30 of the Land Acquisition Act, the respondent No. 8 Vilas Ambadas Waghmare is bound to be a party. The Trial Court has committed an error in holding that the dispute is regarding ownership and title in respect of 0.70 R. land out of Gat No. 66 and not in respect of apportionment of compensation. The undisputed factual position is that the respondent No. 8 Vilas Ambadas Waghmare has purchased land admeasuring 1 H. 1 R. by registered sale deed dated 26.3.2006 out of land Gat No. 66. The 8 petitioner is the owner of the land admeasuring 1 H. 85 R. out of land Gat No. 66 as per the order dated 29.1.2009. Neither the respondent No. 8 disputes the ownership of the petitioner over the land admeasuring 1 H. 85 R. of land in Gat No. 66 nor the petitioner is disputing ownership of respondent No. 8 in respect of 1 H. 1 R. of land in Gat No. 66. The Trial Court has, therefore, committed an error in holding that a dispute does not pertain the apportionment of compensation and it pertains only to the ownership and title of the property. The Trial Court has committed error of jurisdiction in rejecting the objection along with the application. 10. Shri. Jaybhar, the learned counsel appearing for the respondent No. 8 has relied upon the decision of the Andhra Pradesh High Court reported in 1999 (2) LAC 1 (AP) in the case of P. Rojamani and others Vs. The Mandal Revenue Officer, Palakonda and others in support of his proposition that the application by the claimants under Order 1, Rule 10 of CPC for joining them as a party to the proceedings is not maintainable. The said decision turns upon that facts of that case, wherein it was held that the claimants were not the persons interested in the dispute, the application was filed by the persons who are not parties to the proceedings. Hence, the judgment is not applicable in the facts of the present case. Another judgment relied upon by the learned counsel Shri. Jaybhar is reported in 2000 (2) Mh.L.J. 81 in the case of Raghunath Dhondu Navde vs. Pandit Ramchandra Navde and others. In this judgment, it has been held that a person who is not a party to the 9 reference made under Section 30 of the Land Acquisition Act, is not entitled to appear before the Executing Court for the purpose of apportionment of enhanced compensation. It was held that the order of the Executing Court, entertaining the application at the instance of such person is, therefore, without jurisdiction and remedy is to file a separate suit. He has relied upon paragraph No. 6 of the said judgment, wherein it has been held that the provisions of Order 1, Rule 10 of CPC, if followed will be inconsistent with the provisions of the Land Acquisition Act, as has been held by the Apex Court in the case reported in AIR 1996 SC 1513 in the case of Ambey Devi vs. State of Bihar. The said judgment is also not applicable to the facts of the present case, for the reasons that it was question of making party in the execution proceedings arising out of reference under Section 30 of the Land Acquisition Act. Here in the present case, these are the proceedings under Section 30 of the Land Acquisition Act and all persons, who are interested in the apportionment of compensation in respect of the land acquired or any portion thereof, have to be necessarily a party to the proceedings, as their rights are affected. The said judgment also, therefore, is of no help to the respondent No. 8. 11. In the result, the instant writ petition is allowed. The order dated 13.8.2009 passed by the Ad-hoc District Judge -1, Beed, rejecting the applications, Exh. 15 and 23, is set aside. Similarly, the order, rejecting the LAR No. 247/2008 is also quashed and set aside. The applications 10 Exhs. 15 and 23 are allowed. The matter is remitted back to the Ad-hoc District Judge for decision of the LAR No. 247/2008 on its own merits. It shall be open for the respondent No. 8 to file his reply in the said proceedings. No order as to costs. Rule is made absolute in the aforesaid terms. [ R.K. DESHPANDE, J. ] ssc/wp7779.09