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Gebi Bapuji Banjari (Yerwal) Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberMisc. Civil Appln. No. 112 of 2002 in Civil Rev. Appln. No. 335 of 2000
Judge
Reported in2006(2)ALLMR348; 2006(2)MhLj697
ActsLand Acquisition Act, 1894 - Sections 9, 18, 18(2), 28A and 31(2)
AppellantGebi Bapuji Banjari (Yerwal)
RespondentState of Maharashtra and anr.
Appellant AdvocateK.S. Narwade, Adv.
Respondent AdvocateD.P. Thakre, Assistant Government Pleader
DispositionPetition dismissed
Excerpt:
.....respondents that in the cases in hand, the applicants had filed their applications even prior to receipt of the compensation under the award which is sought to be referred to the court under section 18. to be specific, the applications were filed on 18-5-2004 whereas the amount of compensation was received by them on 25-5-2004..it may be seen that even before the amount of compensation was received on 25-5-2004, the claimants had filed applications for enhancement on 18-5-2004, obviously indicating that they were not satisfied with the award......taking exception to the rejection of his application for reference under section 18 of the land acquisition act, 1894.2. the review-petitioner is a person whose land was acquired for the purpose of expansion of gaothan. the land acquisition officer issued appropriate notification. the review-petitioner had demanded compensation at the rate of rs. 1 lakh per acre. by an award dated 1-1-1999, the review-petitioner was awarded compensation of rs. 27,388/-. the amount of compensation was received by the review-petitioner on 1-11-1999. on 10-12-1999, the review-petitioner filed a reference petition before the land acquisition officer under section 18 of the land acquisition officer for being forwarded to the district court. the land acquisition officer refused to make the reference by.....
Judgment:

R.C. Chavan, J.

1. This is an application for review of an order passed by A.B. Naik, J. on 3-5-2001 dismissing the Civil Revision Application filed by the review-petitioner taking exception to the rejection of his application for reference under Section 18 of the Land Acquisition Act, 1894.

2. The review-petitioner is a person whose land was acquired for the purpose of expansion of Gaothan. The Land Acquisition Officer issued appropriate notification. The review-petitioner had demanded compensation at the rate of Rs. 1 lakh per acre. By an award dated 1-1-1999, the review-petitioner was awarded compensation of Rs. 27,388/-. The amount of compensation was received by the review-petitioner on 1-11-1999. On 10-12-1999, the review-petitioner filed a reference petition before the Land Acquisition Officer under Section 18 of the Land Acquisition Officer for being forwarded to the District Court. The Land Acquisition Officer refused to make the reference by observing that the review-petitioner had received the amount of compensation without any protest and, therefore, it was to be presumed that the quantum of compensation awarded was accepted by the review-petitioner. Against this order passed by the Land Acquisition Officer on 16-12-1999, the review-petitioner preferred Civil Revision Application, which was numbered as 335 of 2000. The said application was dismissed as stated above by an order dated 3-5-2001, wherein, relying on the decision of the Apex Court in the case of Ashwani Kumar Dhingra v. State of Punjab, reported in : [1992]2SCR39 , A.B. Naik, J. held that the amount of compensation having been received without lodging any protest, the claimant lost his right to seek reference and consequently the order passed by the Land Acquisition Officer was just and proper.

3. While seeking review, it is the review-petitioner's case that he had in fact stated in his reference petition as well as the review petition that he had lodged protest before accepting the award. The review-petitioner had also claimed specific sum under Section 9 of the Act, which could be sufficient to show that he had not accepted the sum awarded. The review-petitioner relied on a judgment of the Apex Court in the case of Ajit Singh and Ors. v. State of Punjab and Ors. reported in : (1994)4SCC67 .

4. I have heard both the learned Counsel for the review-petitioner as well as the learned Assistant Government Pleader for the respondents. According to the learned Counsel for the review-petitioner, the decision of the Apex Court in the case of Ashwani Kumar Dhingra v. State of Punjab : [1992]2SCR39 referred to in the order under review, does not at all give rise to the ratio that a person accepting compensation without lodging a protest loses his right to seek a reference under Section 18 of the Act. He pointed out that in para 4 of the said Judgment, the Apex Court had specifically observed that Ashwani Kumar Dhingra had accepted the compensation awarded under protest and thereafter had filed an application for enhancement of compensation. Therefore, there was no occasion for the Court to consider the implications of accepting the amount awarded without protest.

5. The learned Counsel for the review-petitioner further pointed out that the question in Ashwani Kumar Dhingra's case did not pertain to the tenability of a reference for enhancement of compensation, but the tenability of acquisition proceedings itself. The learned Counsel submitted that it was in this context that the Apex Court made observations in para 10, which have been erroneously elucidated in placitum (C) to indicate that a person accepting the amount on award without protest would not have right to seek a reference.

6. In order to understand the arguments advanced, it may be useful to reproduce para 10 of the Judgment of the Apex Court in Ashwani Kumar Dhingra's case as under:

The acceptance of compensation under protest was not done by the appellant with a view to safeguard his right to challenge the acquisition itself but to safeguard his right to require the matter being referred by the Collector for determination of the Court in relation to the matters mentioned in Section 18 of the Land Acquisition Act. It is clear from the provisions of Section 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the award. In order to show that the person concerned had not accepted the award the claimants accept the compensation only under protest because once the compensation awarded in pursuance of the award is accepted without protest the person concerned may lose his right to a reference for various matters mentioned in Section 18 of the Land Acquisition Act.

It may be seen that the Court observed that the protest, which Ashwani Kumar Dhingra had lodged while accepting the compensation, was merely to safeguard his right to secure a reference for enhancement of compensation and not to safeguard his right to challenge the acquisition itself. Thus, it is clear that the decision of the Apex Court in Ashwani Kumar Dhingra's case cannot be an authority for the proposition that a claimant receiving a compensation without protest cannot seek reference to have compensation enhanced, since, first, in that case, the claimant had lodged a protest before receiving the compensation, and secondly the question raised did not pertain to competence of a reference for enhancement, but challenge to the acquisition itself. To this extent, the learned Counsel for the review-petitioner is right.

7. The learned Counsel submitted that there are number of judgments to support his proposition that even in absence, of a protest, a petitioner could seek reference for enhancement of compensation. One such judgment, which he had referred to in the petition itself, is Ajit Singh v. State of Punjab, reported in : (1994)4SCC67 . In that case, the Land Acquisition Officer had awarded compensation at the rate of Rs.330/- per marla. The claimants had preferred an application for reference under section before the District Court and the District Judge had enhanced compensation to Rs. 700/- per marla. Some of the claimants had received the compensation as per award without any protest. Enhancement was denied to them. Such claimants filed first Appeal before the High Court, which dismissed the appeal. When the matter was taken to the Apex Court, the Court allowed the appeal holding that the appellants were entitled to enhanced compensation and while doing so, observed in para 5 as under:.Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants.

The learned Counsel, therefore, submitted that in view of this decision of the Apex Court, there should be no doubt about the tenability of an application for reference for enhancement even if the claimants had received the amount of award without protest. Though the Court had not specifically referred to Section 28A of the Act, the facts clearly show that the claimants were seeking enhancement because some of the claimants whose lands had been dealt with by the same award had been granted enhanced compensation. Therefore, their cases deserved to be referred to the Court. It may be impermissible to infer from this judgment that the Apex Court had virtually nullified requirement of second proviso to Section 31(2) of the Act.

8. The learned Counsel for the review-petitioner also drew my attention to the following decisions of this Court in (1) State of Maharashtra v. Shridhar S/o Ramchandra Mokasdar, reported in : 2005(1)MhLj958 ; (2) Dhondi Vellappa Patil v. Special Land Acquisition Officer No. 6, reported in : 2003(4)BomCR648 ' and Tanaji Abaso Pawar and Ors. v. State of Maharashtra and Anr. reported in : 2005(3)BomCR453 : 2005 (2) ALL MR 76.

9. I have carefully gone through all the three decisions, but could not find that the said decisions support the proposition that the requirement of making a protest contained in second proviso to Sub-section (2) of Section 31 of the Land Acquisition Act as a pre-condition for making a reference under Section 18 has in any way been diluted by these judgments. It is manifest that when the Legislature had specifically provided in the second proviso to Sub-section (2) of Section 31 of the Act that no person, who has received the amount otherwise than under protest, would be entitled to make any application under Section 18, no Court would be able to hold otherwise.

10. It may be seen that in the case of State of Maharashtra v. Shridhar S/o Ramchandra Mokasdar, the question was not of absence of protest. The claimants had stated that they had received the compensation under protest and that the protest was recorded by them on the payment vouchers. In this context, the Court observed that non-production of vouchers, which were in the custody of the Land Acquisition Officer, would result in an inference that factum of protest was proved. The Court, however, also observed that the Authorities should explain to the claimants the implications of receipt of compensation to obviate such difficulties. It is thus clear that the case of State of Maharashtra v. Shridhar S/o Ramchandra Mokasdar : 2005(1)MhLj958 , cannot be an authority for the proposition that requirement of protest is to be done away with.

11. In Dhaondi Vellappa Patil v. Special Land Acquisition Officer No. 6 : 2003(4)BomCR648 the claim was that of having made an oral protest. This was accepted by the Court by observing that oral protest is also permissible.

12. In Tanaji Abaso Pawar and Ors. v. State of Maharashtra and Anr. : 2005(3)BomCR453 , it is manifest that the claimants had lodged protest, as may be seen from para 9 of the Judgment, which is reproduced as below :

Referring to the above quoted second proviso to Sub-section (2) of Section 31, it is sought to be contended on behalf of the respondents that unless the amount is received specifically under protest, the interested person is not entitled to seek reference under Section 18 of the said Act. It is the case of the respondents that in the cases in hand, the applicants had filed their applications even prior to receipt of the compensation under the award which is sought to be referred to the Court under Section 18. To be specific, the applications were filed on 18-5-2004 whereas the amount of compensation was received by them on 25-5-2004....

It may be seen that even before the amount of compensation was received on 25-5-2004, the claimants had filed applications for enhancement on 18-5-2004, obviously indicating that they were not satisfied with the award.

13. The learned Assistant Government Pleader for the respondents, on the other hand, drew my attention to the two decisions of the Apex Court in the cases of Wardington Lyngdoh and others v. The Collector, Mawkyrwat, reported in : [1995]3SCR354 , and Land Acquisition Officer v. Shivabai and Ors. reported in : [1997]3SCR647 , wherein the Court ruled that absence of protest would make reference untenable. In the case of Wardington Lyngdoh and others v. The Collector, Mawkyrwat, reported in : [1995]3SCR354 , the Court found that the claim of petitioners of having raised an oral protest was belied by the written agreement entered into by them with the Authorities. In the case of Land Acquisition Officer v. Shivabai and Ors. reported in : [1997]3SCR647 , the claimants had received the amount without any protest on 25-11-1965 and 27-11-1965 respectively when they were present at the time of pronouncement of award. The reference applications were made subsequently. In this context, the Court observed in para 7 as under :

Thus it could be seen that when the parties were present at the time when the award came to be made, the notice under Clause (b) of proviso to Sub-section (2) of Section 18 was not necessary. As a consequence, within six weeks from the date of the award an application is required to be made for reference under Section 18. If the amount is received without protest, by operation of second proviso to Sub-section (2) of Section 31, such person who has received the amount without protest is not entitled to seek a reference under Section 18.

14. The learned Counsel for the review-petitioner states that this judgment cannot be an authority for the proposition that protest is necessary, since it is on the question of limitation for making a reference. True it is, that the question involved in the case of Land Acquisition Officer v. Shivabai and Ors. : [1997]3SCR647 was also one of limitation. In fact, no authorities are required for the proposition that mandate of second proviso to Sub-section (2) of Section 31 of the Land Acquisition Act should be followed. The authorities relied on by the learned AGP for the respondents only reinforce the submission that there has been no dilution of that requirement of protest by any pronouncement of the Apex Court. In view of this, though the case of Ashwani Kumar Dhingra v. State of Punjab, : [1992]2SCR39 , referred to by A.B. Naik, J. in his order dismissing the Civil Revision Application, may not be an authority for the proposition elucidated in the order, there is no doubt that a reference is not tenable when compensation is received without protest.

15. In this case, the review-petitioner's claim that he had raised some oral protest is belied by the fact that he had not stated so in the petition for reference under Section 18 of the Land Acquisition Act. Theory of oral protest now evolved, may be an afterthought.

16. In view of this, the order passed by A. B. Naik, J. needs no review. The review petition is consequently dismissed.


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