Jagdish Bhai Chaturbhai Patel vs Special Land Acquisition Officer, Vadodara

V.M. Sahai, J

The short question that arises for consideration in this petition is that where a notification under Sec. 4(1) and declaration under Sec. 6 of the Land Acquisition Act, 1894 has been issued and award has been made under Sec. 11 of the Act, the compensation has been lifted by the person whose name was not recorded in the revenue records as owner of the land, but he had received the land under a family settlement after the award under Sec. 11 of the Act and the Special Land Acquisition Officer has paid compensation to the petitioner on 22-3-1994 treating him to be person interested under Sec. 31 of the Act, such an interested person can file an application under Sec. 28A of the Act for enhancement of compensation, if the compensation has been enhanced in some other reference under Sec. 18 of the Act?

The facts in brief are that the land in dispute is bearing Block No. 289, admeasuring 37,696 sq.mts. situated in village Kadadra, Tal. Dabhoi, Dist. Vadodara. Out of the said land, the respondent acquired 1,050 sq.mts. of land for public purpose for construction of Kadadra Distribution Branch Canal. The Notification under Sec. 4 of the Land Acquisition Act, 1894 (for short ''the Act'') was issued on 30-4-1992. Declaration under Sec. 6 of the Act was published on 22-4-1993. The award was made by the Special Land Acquisition Officer (for short ''the S.L.A.O.'') on 30-11-1993 and compensation of Rs. 3/- per sq.mtr. for non-irrigated land and Rs. 4-50 per sq.mtr. for irrigated land.

2.1. The petitioner was not recorded as the land-holder in revenue record. However, this land came to the share of the petitioner by means of a family settlement dated 27-1-1994. In pursuance of the family settlement, the petitioner applied for the amount of compensation as per the award of the S.L.A.O. The S.L.A.O. treated the petitioner to be a person interested as provided by Sec. 31 of the Act. According to the petitioner, since the petitioner was person interested, therefore, the S.L.A.O. disbursed the amount of compensation to the petitioner instead of the recorded land-holder. The petitioner has produced details of the amount of compensation paid to him (at page 43 of the petition) which also mentions cheque number. It is further stated that the possession of the land in question was taken by the State from the petitioner.

Thereafter, some other persons of the village preferred Reference under Sec. 18 of the Act being Land Reference Case No. 797 to 800 of 1994 before the learned 11th Additional Senior Civil Judge, Vadodara, with regard to same notification. In reference proceedings, the learned 11th Additional Senior Civil Judge, Vadodara by judgment and award dated 31-3-2008 enhanced the compensation to Rs. 20/- per sq.mtr.

3.1. Since, the land of the petitioner was also acquired by the same notification in which the amount has been enhanced, the petitioner filed an application before the S.L.A.O. on 4-8-2008 under Sec. 28A of the Act. The S.L.A.O. by order dated 10-12-2009 rejected the application under Sec. 28A of the Act of the petitioner on the ground that the petitioner was not the land-holder on the date of the award.

3.2. The petitioner thereafter filed another application dated 12-2-2010 stating therein that after the award was passed by the S.L.A.O., a family settlement was arrived at between the family members of the petitioner and the land which was acquired fell into the share of the petitioner, and accordingly, the petitioner applied for lifting the compensation before the S.L.A.O. and has been granted compensation by S.L.A.O. as the petitioner is a person interested. Therefore, the petitioner has got every right to maintain the application under Sec. 28A of the Act and prayed that the order dated 10-12-2009 passed by the S.L.A.O. be reconsidered and the application under Sec. 28A of the Act may also be reconsidered.

3.3. By order dated 11-5-2010, the application of the petitioner dated 12-2-2010 was rejected on the ground that when the Notification under Sec. 4(1) of the Act was issued, at that time, the petitioner''s name was not recorded and the petitioner was not recorded land-holder. Therefore, application made on his behalf under Sec. 28A of the Act is not maintainable.

3.4, In the present writ petition, the petitioner has challenged both the orders dated 10-12-2009 and 11-5-2010 passed by S.L.A.O..

We have heard Mr. K. M. Sheth, learned Counsel for the petitioner and Mr. N. J. Shah, learned Assistant Government Pleader appearing for respondents.

Learned Counsel for the petitioner has urged that at the time when the land was acquired, the land was recorded in the name of Patel Chiman bhai Karshan bhai, Patel Parshottam bhai Karshan bhai, Patel Manu bhai Karshan bhai and Patel Vimlaben Karshan bhai. Thereafter, in view of family settlement, the said land fell into the share of the petitioner i.e. Jagdish bhai Chaturbhai Patel. Therefore, even if the petitioner had no right to challenge the acquisition proceedings, he has a right to claim compensation under Sec. 23(1) of the Act and he would step into the shoes of the owner and claim compensation. According to learned Counsel for the petitioner, if the petitioner can claim compensation, after the award then he can also claim higher compensation under Sec. 28A as he would be a person interested as provided by Sec. 28A of the Act and the impugned orders dated 10-12-2009 and 11-5-2010 passed by S.L.A.O. deserve to be quashed.

On the other hand, Mr. N. J. Shah, learned Assistant Government Pleader has produced the record and from the record, he has produced a copy of notification issued under Sec. 4 of the Act. He has urged that the petitioner not being the original land-holder who was recorded at the time when the award was made under Sec. 11 of the Act, the petitioner is not entitled to claim higher compensation under Sec. 28A of the Act.

The Apex Court in U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, , in Paragraph 4, has held as under :

"4. The next question is whether the respondent is entitled to compensation, and if so, from what date and at what rate? The original owner has the right to the compensation under Sec. 23 (1) of the Act. Consequently, though the respondent acquired no title to the land, at best he would be entitled to step into the shoes of the owner and claim payment of the compensation, but according to the provisions of the Act. It is settled law that the price prevailing as on the date of the publication of the notification under Sec. 4(1) is the price to which the owner or person who has an interest in the land is entitled to. Therefore, the purchaser as a person interested in the compensation, since he steps into the shoes of erstwhile owner, is entitled to claim compensation."

7.1. The Apex Court in Shanti Sports Club and Another Vs. Union of India (UOI) and Others, , in Paragraph 63, has held as under :

"63. This being the position, the appellants cannot plead equity and seek Court''s intervention for protection of the unauthorised constructions raised by them. It is trite to say that once the land is acquired by following due process of law, the same cannot be transferred by the land owner to another person and that any such transfer is void and is not binding on the State, A transferee of the acquired land, can at best, step into the shoes of the land owner and lodge claim for compensation - Gian Chand Vs. Gopala and Others, ; Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain,

1997 (1) SCC 37; Yadu Nandan Garg v. State of Rajasthan, JT 1995 (8) SC 179 : 1995 AIR SCW 4420 and Jaipur Development Authority Vs. Mahavir Housing Coop. Society, Jaipur and Others, ." 7.2. From the aforesaid decision of the Apex Court it is clear that the transferee of an acquired land cannot challenge land acquisition proceedings, but he steps in the shoes of land owner and can lodge a claim for compensation.

Now, corning to the main question whether the application filed by the petitioner is maintainable or not under Sec. 28A of the Act, learned Assistant Government Pleader has placed reliance on the decision of the Supreme Court in State of Orissa v. Chitrasen Bhoi, 2009 (17) SCC 74 and has urged that an application under Sec. 28A of the Act can only be maintained by the original land-holder whose land has been acquired and not by the person in whose favour the land came under a family settlement after the award. Lifting of compensation would not make him person interested.

We have carefully gone through this decision. This decision is of no help to the learned Assistant Government Pleader. It is very clearly stated in the judgment that compensation would be awarded to the original landholder. The original land-holder would be a person who is recorded at the time when the land was acquired under Sec. 4(1) of the Act or a person who has received the amount of compensation in pursuance of the land acquisition proceedings under Sec. 11 of the Act. The argument of the learned Assistant Government Pleader that it will frustrate the whole purpose of enactment of Sec. 28A of the Act is misconceived. Section 28A of the Act was enacted for social welfare of poors. If the land-holder was poor and the land has gone in family settlement to one of his family members, then the family member could not be treated to be a rich person, who is ousted from the family. He will remain a poor person and he would be a person interested and since the amount of award under Sec. 11 of the Act has been paid to him, he would be entitled to maintain an application under Sec. 28A of the Act. In the instant case, we find that the person whose name was recorded when proceedings under Sec. 4(1) of the Act was taken, in family settlement agreed that amount of compensation be paid to the present petitioner. Therefore, for all the practical purposes, the petitioner would be deemed to be the original land-holder and that is why the Special Land Acquisition Officer has paid the amount of compensation to the petitioner awarded under Sec. 11 of the Act. It is not disputed by the learned Assistant Government Pleader that the petitioner or any other person of the family who was recorded at the time of acquisition of the land, with regard to the land in dispute has filed any reference under Sec. 18 of the Act. It is not disputed that the application filed by the petitioner under Sec. 28A of the Act is within time. Therefore, we find that the decision of the Apex Court in State of Orissa (supra) helps the petitioner''s case. For the aforesaid reasons, this petition succeeds and is allowed. The orders dated 11-5-2010 and 10-12-2009 are quashed and set aside. The Special Land Acquisition Officer is directed to decide the application of the petitioner filed under Sec. 28A of the Act in the light of this judgment on merits as expeditiously as possible, within a period of four months from the date certified copy of this judgment is produced before him. Rule is made absolute. Parties to bear their own costs.

(NRP)

Petition allowed