Case: Godavari Marathwada Patbandhare Vikas Mahamandal & Others Vs. The State of Maharashtra & Others

Swatanter Kumar, C.J. Godavari Marathwada Irrigation Development Corporation, a statutory body established under the provisions of Maharashtra Godavari Marathwada Irrigation Development Corporation Act No. 23 of 1998 (hereinafter referred to as the Corporation) has filed the present Appeal challenging the legality and correctness of the Order passed by the learned Single Judge dated 29th November 2005 dismissing the Writ Petition filed by the Corporation praying for setting aside of the Award made by the Special Land Acquisition Officer, Nashik (hereinafter referred to as the SLAO) in case of Proposal No. 30 of 1982 dated 20th September 2003 passed under Section 28A of the Land Acquisition Act, 1894. In the Writ Petition, the Corporation had also prayed in the alternative that if the application of the Claimant, Respondent No.2, is found to be within limitation, then the matter be remanded back to the Collector for disposal on merits after giving an opportunity of hearing to the Corporation. 2. The facts giving rise to the present Appeal fall in a very narrow compass. The Appropriate Government issued a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) which was published on 31st March 1983. In furtherance to this Notification, declaration under Section 6 of the Act was issued on 31st October 1985. The lands were acquired from the land owners and possession thereafter was taken on 10th December 1985. The SLAO made his Award on 30th November 1987 under Section 11 of the Act. The Award of the Collector was challenged by the Claimants by filing Petitions under Section 18 of the Act. These References were referred by the SLAO to the Court of competent jurisdiction. The Joint District Judge, Nashik, vide his judgment dated 7th April 1995 passed in Land Reference No.500 of 1989 enhancing the compensation payable to the Claimants at the rate of Rs.24,000/- to Rs.40,000/-. 3. Some of the Claimants who had not preferred References under Section 18 of the Act filed Petitions before the SLAO under Section 28A of the Act. These very Claimants had even filed a Writ Petition being Writ Petition No. 1270 of 2002 which was decided by this Court vide its Order dated 3rd May 2002 requiring the Government to hear the Petitions in accordance with law. The Writ Petition was disposed of with direction to decide the Application under Section 28A of the Act within six months. The Applications filed by the Petitioners under Section 28A of the Act were finally disposed of by the SLAO vide judgment dated 20th September 2003 enhancing the compensation and placing the Claimants at parity with the judgment of the Joint District Judge, Nashik dated 7th April 1995. 4. Aggrieved by the Award of the SLAO dated 20th September 2003, the Corporation preferred Writ Petitions before this Court which came to be dismissed vide Order dated 29th November 2005 giving rise to the present Appeals. The Corporation had filed different Writ Petitions i.e. 18 against different Claimants. Separate Appeals have been filed against the judgment of the learned Single Judge in each of those Writ Petitions. Thus, by this Judgment, we will dispose of the 18 Appeals preferred by the Corporation challenging the correctness and legality of the Order of the learned Single Judge dated 29th November 2005. 5. Writ Petitions filed by the Corporation were primarily dismissed by the learned Single Judge on a very short ground. It will be useful to refer to the relevant part of the impugned judgment. The same reads as under:- The possession of the land was taken by the government on 10.12.85 and an award has been declared by the SLAO on 30.10.87. Thereafter reference was made by some of the affected persons u/s. 18 and the same was decided by the Civil Court by passing an order and judgment on 7.4.95. Admittedly, the petitioner has come into existence only on 1st October 1998 as mentioned in para 1 of the petition. Thus the petitioner was not in existence till the entire acquisition proceeding was completed and till the enhanced compensation is awarded by the Civil Court under the provision of S. 18 of the Land Acquisition Act. In that view of the matter, the contention of the learned counsel for the petitioner that for the purpose of giving a similar benefit to other parties who are also affected by the same award under the provision of S. 28(A) petitioner ought to have been heard has no merits. Petitioner is not concerned with the acquisition proceeding which has been completed prior to incorporation of the petitioner and therefore, contentions raised by the petitioner are without merits. In that view of the matter, there is no substance in the present petition. Petition is accordingly dismissed. In view of dismissal of the petition, Civil Application does not survive. The same is also dismissed. 6. As is evident from the above recorded findings, it is clear that the genesis of the impugned order is that as the Corporation came into existence subsequent to the passing of the Judgment dated 7th April 1995, it has no locus standi or right to be heard by the SLAO before whom the Petitions were filed under Section 28A of the Act. The original Award was made by the SLAO on 30th November 1987 awarding compensation of Rs.6,500/- to Rs.12,500/- per hectare for acquisition of the lands of the Claimants depending upon the nature and potential of the land. As already referred, this compensation was enhanced by the Reference Court by its judgment dated 7th April 1995 to Rs.24,000/- to Rs.40,000/- per hectare. The present Respondent No.2 (Claimants in all these 18 Writ Petitions) filed their Petitions under Section 28A of the Act between the period 7th August 1995 to 21st September 1995 i.e. after the pronouncement of the Award by the Joint District Judge, Nashik. The SLAO granted relief to the Claimants – land owners and awarded the compensation payable at the rate of Rs.24,000/- to Rs.40,000/- per hectare depending upon the nature and potential of the land. The learned Single Judge has not touched the merits of the case but has only proceeded on the basis that the Corporation was neither a necessary nor a proper party for the reason that they came into existence subsequent to the order passed by the Joint District Judge, Nashik i.e. 7th April 1995. 7. Thus, we have to examine whether the Corporation would be a necessary or a proper party to such proceedings. The Supreme Court in the case of Neyvely Lignite Corporation Ltd. Vs Special Tahsildar (Land Acquisition) Neyvely and others, (1995) 1 SCC 221 , explained the term `person interested. After some discussion and reference to law, the Court held that the local authority or the company for whose benefit the land is acquired is a proper if not a necessary party within the meaning of Order 1 Rule 10 of the Code of Civil Procedure and thus they have a right to participate in the reference proceedings under Section 18 of the Act. The Court held as under: - .... These are very valuable and salutary rights. Moreover in the language of Order 1 Rule 10 CPC, in the absence of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order 1 Rule 10 CPC. The denial of the right to a person interested is in negation of fair and just procedure offending Article 14 of the Constitution. It is true that Section 50(2) of the Act gives to the local authority or the company right to adduce evidence before the Collector or in the reference under Section 18 as it was specifically stated that in any proceedings held before the Collector or the Court, the local authority or the company may appear and adduce evidence for the purpose of determining the amount of compensation. However, it has no right to seek reference. The operation of Section 3(b) in conjunction with Section 50(2) cannot be limited within a narrow compass. The right given under sub-section (2) of Section 50 is in addition to and not in substitution of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. 8. A Constitution Bench of the Supreme Court in the case of U.P. Awas Evam Vikas Parishad vs Gyan Devi (Dead) by L:Rs. and others, (1995) 2 SCC 326 , discussed this principle in great elaboration and noticed that the local authority or a company has a right to participate in the proceedings for determination of compensation though they are not a necessary party but being a proper party it must be impleaded in the proceedings before Reference Court so as to enable it to oppose the claim for enhancement of compensation. The Court further clarified that such authority or company has the right to invoke remedies available under Article 226 of the Constitution of India as well as under the Land Acquisition Act. That is the wide scope given to the rights of the authority or the company for whose benefit the land is acquired. 9. In the case of Kanak (Smt) and another vs U.P. Avas Evam Vikas Parishad and others, (2003) 7 SCC 693 , the Supreme Court observed that a notice to a person for whose benefit land is acquired is necessary except when the local authority has knowledge about pendency of acquisition proceeding. The gist of the observations made by the Supreme Courts from paragraphs 32 to 38 of the said judgment are as follows:- A notice to a person, for whose benefit the land is acquired or who is responsible for payment of compensation amount, was mooted before the courts of law on the construction of Section 50 of the Land Acquisition Act. It was held that sub-section (2) of Section 50 must be construed as conferring a right of notice on the local authority at the stage of determination of the amount of compensation before the Collector as well as the Reference Court. In Gyan Devi case the Supreme Court held : the failure to give such a notice would result in denial of the said right unless it can be shown that the local authority had knowledge about the pendency of the acquisition proceedings before the Collector or the Reference Court and has not suffered any prejudice on account of failure to give such notice. The exception carried out by the Supreme Court in the matter of service of notice to the local authority is not only confined in its knowledge about the pendency of the acquisition proceedings before the Collector or the Reference Court but also any prejudice on account thereof. The said two conditions are to be read conjunctively and non disjunctively. In this case the respondent was not represented even before the Collector. But reason of non-service of the notice the respondent was prejudiced. The respondent filed a writ petition because it was seriously prejudiced. The High Court, having regard to the facts and circumstances of this case cannot be said to have committed any illegality in allowing the writ petition. However, the High Court should have remitted the matter back to the Reference Court with a direction that the respondent Parishad may be impleaded as a party so as to enable it to cross-examine the witnesses examined on behalf of the claimants and examine its own witnesses and bring on record such other materials as it may deem fit and proper. It would also be open to the claimants to adduce evidence to the contra. 10. In the case of NTPC vs State of Bihar and others, (2004) 12 SCC 96 , the Court took the view that the Award made in absence of the local authority or company for whose benefit the land has been acquired would be liable to be set aside and matter should be remanded back to the Reference Court for adjudication after its impleadment. The Courts have also taken the view that, being an interested party, they are entitled to notice and the Reference Court is under obligation to give notice to such local authority/company. The Court observed as under: - 6. The question which arises for consideration is whether the appellants have a right to be impleaded in all references. This question is no longer res integra. The law is settled by a Constitution Bench of this Court in the case of U.P. Awas Evam Vikas Parishad v. Gyan Devi. In that case, after considering various provisions of the Land Acquisition Act, it has been held that the body on whose behalf of the land is acquired is not just a necessary party but is also a proper party before the Reference Court. It has been held that not giving them notice either at the stage of fixing compensation by the Collector or by the Reference Court affects their rights. It has been held that they must be impleaded as a party in the reference proceedings. ..... ..... ..... ..... 10. WE are unable to accept this submission. As set out hereinabove, the law has been settled by the Constitution Bench judgment of this Court. In cases relied upon by Mr. Sanyal, the application of the acquiring body was to be impleaded in the appeals which were pending before the High Court. It was; in those circumstances that the matters were referred back to the High Court. Otherwise, as set out in the other two cases as mentioned above, it becomes absolutely unavoidable that the cases be referred back to the Reference Court. The right which the acquiring body has is not just a right to lead evidence before the Reference Court. The acquiring body also has a right to support the award which has been made by the Land Acquisition Officer. This can be done by cross-examining witnesses led by the claimants. Non-impleadment of the body on whose behalf acquisition has taken place, defeats this right. 11. From the above settled principle of law, it is clear that the Corporation or a Company for whose benefit and public purpose the land is acquired by the State would be a proper party entitled to participate in the proceedings at all relevant stages. Determination of compensation is not only confined to the proceedings before the Collector and the Reference Court, but it extends to proceedings before the Appellate Court or any other forum in accordance with the provisions of the Land Acquisition Act provided the issue relates to determination and/or enhancement of compensation. Section 3(b) of the Act explains and defines the word person interested. The said expression is stated to be inclusive of all the persons claiming an interest and compensation to be made on account of acquisition of land under this Act and the person shall be deemed to be interested in the land if he is interested even in an easement affecting the land. Section 9 of the Act also refers shall require all persons interested in the land to appear personally or by agent before the Collector. Section 11 also refers to this expression. In some what distinction to the expression used earlier, Section 18 refers to any person interested thus indicating the wide and liberal meaning that this expression is intended to be given by the Legislature in different provisions of the Land Acquisition Act. 12. The body, Corporation or Company for whose benefit the land has been acquired being a proper party would be entitled to the notice and impleadment in the proceedings before the authorities and Reference Court and even the Appellate Court, the appeal being continuation of the original proceedings. Merely because the Corporation is a successor or is created legally or technically on a date subsequent to the pronouncement of the Award by itself cannot be a ground for holding that the said Corporation or company would not be entitled to the similar right and obligations as are contemplated in acquisition laws. The proceedings before the SLAO under Section 28A of the Act are fresh proceedings for awarding of compensation and the Collector is under obligation to give notice to all interested persons in terms of Section 28A(2) of the Act. In the present case, right from the beginning the land has been acquired for a public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court. 13. While considering the case for enhancement of compensation under Section 28A of the Act, the SLAO is expected to appreciate the evidence and has to examine whether the lands of the Claimants before him are entitled to similar or identical compensation as awarded to the owners of the land by the Reference Court or any other Court of competent jurisdiction. The Scheme of Section 28A is that the Collector on receipt of an application under sub-section (1) would conduct an enquiry after giving notice to the interested persons and giving them reasonable opportunity of being heard, would make the Award. Proceedings Section 28A are for re-determination of compensation by the SLAO himself. 14. It will be useful to refer to the judgment of the Supreme Court in the case of Abdul Rasak and others vs. Kerala Water Authority and others, (2002) 3 SCC 228 , where the land initially had been acquired for the benefit of Public Health Engineering Department of the State Government of Kerala vide Notification dated 19th July 1981 issued under Section 4 of the Land Acquisition Act, but subsequently, the Kerala Water Authority, a statutory Corporation was established to achieve the said object and for the benefit of that Corporation the Award had been made. The Supreme Court in these circumstances held as under :- ..... For our purpose, it would suffice to note that in the opinion of the Constitution Bench [U.P. Awas Evam Vikas Parishad vs. Gyan Devi, (1995) 2 SCC 326 ], the right conferred on the local authority under Section 50 (2) of the Land Acquisition Act, in the light of the scheme of the Act, carried with it the right to be given adequate notice by the Collector as well as the reference court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up; the local authority is a proper party in the proceedings before the reference court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard; in the event of enhancement of amount of compensation by the reference court if the Government does not file any appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. The Constitution Bench, however, added a rider to its judgment that the law laid down by it would not have the effect of reopening the matters which stand finally concluded. 15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings for re-determination of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the Collector. 16. This can also be examined from another point of view. Under Order 22 Rule 10 of the Civil Procedure Code, a party is entitled to assign its rights in a legal proceedings to a third party during pendency of the original proceedings or even after passing of a decree in appellate proceedings. Of course, this has to be done with the leave of the Court. Once the leave of the Court is granted, the proceedings can be continued by an assignee. The stage of the proceedings is irrelevant in so far as other requirements of these provisions are satisfied and the leave of the Court is obtained. The Corporation has come into existence by virtue of legislative Act and not a contractual act. The Corporation would be entitled to be impleaded into the proceedings from the date of its existence and would be entitled to participate in the proceedings which are instituted thereafter or at the stage where they are pending. In the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding.

Decision reasoning: 1[ds]6. As is evident from the above recorded findings, it is clear that the genesis of the impugned order is that as the Corporation came into existence subsequent to the passing of the Judgment dated 7th April 1995, it has no locus standi or right to be heard by the SLAO before whom the Petitions were filed under Section 28A of the Act. The original Award was made by the SLAO on 30th November 1987 awarding compensation of Rs.6,500per hectare for acquisition of the lands of the Claimants depending upon the nature and potential of the land. As already referred, this compensation was enhanced by the Reference Court by its judgment dated 7th April 1995 to Rs.24,000per hectare. The present Respondent No.2 (Claimants in all these 18 Writ Petitions) filed their Petitions under Section 28A of the Act between the period 7th August 1995 to 21st September 1995 i.e. after the pronouncement of the Award by the Joint District Judge, Nashik. The SLAO granted relief to the Claimants – land owners and awarded the compensation payable at the rate of Rs.24,000per hectare depending upon the nature and potential of the land. The learned Single Judge has not touched the merits of the case but has only proceeded on the basis that the Corporation was neither a necessary nor a proper party for the reason that they came into existence subsequent to the order passed by the Joint District Judge, Nashik i.e. 7th April 199511. From the above settled principle of law, it is clear that the Corporation or a Company for whose benefit and public purpose the land is acquired by the State would be a proper party entitled to participate in the proceedings at all relevant stages. Determination of compensation is not only confined to the proceedings before the Collector and the Reference Court, but it extends to proceedings before the Appellate Court or any other forum in accordance with the provisions of the Land Acquisition Act provided the issue relates to determination and/or enhancement of compensation. Section 3(b) of the Act explains and defines the word person interested. The said expression is stated to be inclusive of all the persons claiming an interest and compensation to be made on account of acquisition of land under this Act and the person shall be deemed to be interested in the land if he is interested even in an easement affecting the land. Section 9 of the Act also refers shall require all persons interested in the land to appear personally or by agent before the Collector. Section 11 also refers to this expression. In some what distinction to the expression used earlier, Section 18 refers to any person interested thus indicating the wide and liberal meaning that this expression is intended to be given by the Legislature in different provisions of the Land Acquisition ActIn the present case, right from the beginning the land has been acquired for a public purpose, namely, Kadva Project, and in continuation of the same public purpose, a Corporation was established by the State being Godavari Marathwada Irrigation Development Corporation by a legislative Act issued by the competent Legislature. Merely because this Corporation was established in the year 1998 and the Award of the Joint District Judge was passed on 7th April 1995 per se cannot be a ground for rejecting the claim of the Corporation of being heard before the SLAO in proceedings under Section 28A or in the Appeals, if preferred against the judgment of the Reference Court15. The learned Single Judge appears to have proceeded on the basis that pronouncement of an Award dated 7th April 1995 has to be an end to the proceedings. Firstly, it is not clear from the record whether Appeals against the order and judgment dated 7th April 1995 has been preferred by either parties to the proceedings or not. In any case, the proceedings under Section 28A of the Act are proceedings forn of compensation. Once the Collector makes an Award under Section 28A of the Act, accepting, rejecting or partially accepting the claim of the Claimants, the recourse open to the Claimants again would be by filing application under Section 28A(3) of the Act, which would be governed by Sections 18 to 28 of the Act. In other words, the entire process that will have to be followed after the passing of the Award under Section 28A of the Act will be identical in fact and in law to the remedies available to the Claimants against an original Award made under Section 11 of the Act by the CollectorIn the present case, the Petitions under Section 28A of the Act have been filed in the year 1995 while the Corporation came into existence on 1st October 1998 while the Award has been made before the Collector subsequent to its coming into existence i.e. on 20th September 2003. Thus, we are unable to accept the contention of the Respondents that the Corporation is neither a necessary nor a proper party and cannot participate in the proceedings merely because it came into existence subsequently. As it has taken over all the rights and liabilities of the erstwhile Department and it would be the exclusive responsibility of the Corporation to pay enhanced compensation, it has every right to participate in the proceeding.