Yerra Papaiah v. Land Acquisition Officer-Cum-District Social Welfare Officer, Warangal

(1) A notification under section 4 of the land acquisition act was issued on llth august 1975 whereby an extent of ac. 1 - 33 guntas in survey no. 1 and ac. 5 - 38 guntas in survey no. 322 in the village of lashkar singaram was proposed to be acquired for providing house sites to the harijans. This was followed by notification dated 12th november 1975 under section 6 of the act. An award was duly made on 24th january 1976, by the land acquisition officer, namely, district socia' welfare officer (land acquisition) , warangal, wherein rs. 3,45,092 was determined as the compensation including solatium etc. Payable. In the award it was stated that the pattadar was smt. Noorunnisa begum, the second respondent therein and there were protected tenants in both the survey numbers. The protected tenants of survey no. 322 with which we are concerned in this writ petition were shown as m. Raju, k. Mallaiah, y. Nagaiah, and k. Pochalu and the occupiers shown as nakka kanka mallaiah, m. Boroju, pulla kornel etc. It appears from the award that the pattadar had entered into a compromise with pulla kornel who was stated to be the occupant of ac. 4 - 08 guntas in survey no. 322 and ac. 0 - 07 guntas in survey no. 1 and under the compromise he withdrew all his claims in lieu of payment of rs. 25,000 in a lumpsum. Sri nakka kanka mallaiah deposed that he surrendered all his protected tenancy rights and he has no claim. Y. Nagaiah did not turn up in the enquiry under section 9 (1) and 10 of the act but had earlier deposed in the preliminary enquiry that he had no right or claim whatsoever. M. Raju, m. Boroju, k. Pochalu appeared and deposed that they had surrendered their protected tenancy rights in 1954 in favour of the pattedar by accepting some plots of land. M. A. Azeem, the brother and power of attorney holder of the pattedar deposed that his sister had made an oral gift of 1/3rd share of the property under acquisition and claimed that compensation may be apportioned between them in the ratio of 1/3rd and 2/3rds. Accordingly, the land acquisition officer held that the compensation in respect of survey no. 322 could be claimed only by noorunnisa begum, azeem and kornel (who under the compromise were entitled t. O rs. 25,000).

(2) Coming to know of these proceedings the petitioners filed a petition on 30th august, 1976 under section 30 of the land acquisition act before the land acquisition officer stating that the first petitioner is the protected tenant of ac. 1 - 07 guntas out of survey no. 322 and the second petitioner was the protected tenant in respect of ac. 2 - 00 of survey no. 322 and they are entitled to 60% of the compensation in respect of these lands. They stated that they came to know of the award only one week before filing of the petition and that notices under sections 9 and 10 were not given to them and all the proceedings were made behind their back. In the circumstances they requested that the exparte award may be set aside and the case may be referred under section 30of the act to the court to decide about the apportionment of the compensation after adding the petitioners as parties to the land acquisition proceedings. The land acquisition officer by his order dated 13th october, 1976 informed the petitioners that there was no provision in the act either to re - open or to set aside the award once it is passed or to refer the matter to a court under section 30 of the act after passing the award. Challenging the validity of the said order the petitioners have filed this writ petition. The main contention urged on behalf of the petitioners is the land acquisition officer was wrong in holding that he had no jurisdiction to make reference under section 30 of the act once the award had been passed.

(3) In grant v. State of bihar, it was observed by the supreme court that there are two provisions in the land acquisition act, section 18 (1) ard section 30 which invest the collector with the power to refer to the court a dispute as to apportionment of compensation or as to the persons to whom it is payable. The collector is enjoined under section 18 (1) to refer a dispute relating to apportionment, or title to receive compensation, on the application within the time prescribed by sub - section (2) of that at section of a person interested who has not accepted the award. The collector is authorised under section 30 to refer to the court after compensation is settled under section 11, any dispute relatirg to apportionment of the same or any part thereof or relating to the persons to whom the same or any dart thereof is payable. A person who is shown in that part of the award which relates to apportionment of compensation and who is present either personally or through a representative, or on whom a notice under section 12 (2) is served, if he does not accept the award must apply to the collector within the time prescribed under section 18 (2) to refer the matter to the court. But a person who has not appeared in the acquisition proceedings before the collector, if he is not served with notice of the filing, may raise a dispute relating to apportionment or to the persons to whom it is payable and apply to the court for a reference under section 30, for the determination of his rights to compensation. Under section 18 an application has to be made to the collector within the time prescribed by section 18 (2) (b) , but no such period is prescribed under section 30. It is therefore clear from this decision that it is open to an aggrieved party to ask for a reference under section 30 even after the award is passed and there is no time - limit fixed for making such an application. The land acquisition officer was clearly wrong in stating that there is no provision in the land acquisition act to make a reference under section 30 of the act after passing the award.

(4) The learned government pleader as well as sri d. Venkata reddy, who appeared for respondents 3 and 4, the legal representatives of respondent 2 who died during the pendency of the writ petition could not support the statement contained in the impugned memo that there was no provision in the act to make a reference after the award was passed. They however contended that the land acquisition officer was not bound to make the reference. In the decision of the supreme court referred to above, the supreme court itself stated that the collector is not enjoined to make a reference under section 30 and he may relegate the person raising the dispute to agitate the same in suit and pay the compensation in the manner declared by the award. In this connection they drew my attention to the fact that a number of persons were shown as protected tenants or occupiers in the notification under sections 4 and 6, notices were given to them and they had an opportunity to put forth their claims and it was found that they had entered into compromise with the pattedar or surrendered their rights and after considering all their claims and the award was passed. After the entire proceedings were over and the award was passed, the petitioners have now come forward claiming that they are the protected tenants in regard to a part of the land and notices were not given to them. It is not admitted that they are protected tenants and thus there is a dispute as to whether the petitioners are protected tenants or not. In those circumstances it was contended the proper remedy for the petitioners is to agitate their claims in a suit in a civil court.

(5) This argument would have had some force if the land acquisition officer had considered the case of the petitioners in their application to refer the dispute under section 30 of the act and then stated that he did not consider this a fit case for making a reference and that they should agitate their claims in a civil suit. In this case, the land acquisition officer proceeded on the footing that he had no jurisdiction at all to make a reference under section 30 after the award was passed. This assumption is wholly unjustified in view of the decision of the supreme court referred to above. I consider therefore this a fit case for quashing the order of the land acquisition officer and directing him to consider the application for reference under section 30. There can be no doubt that if really the petitioners make out a prima fade case that they are the protected tenants, they will be persons entitled to a share of the compensation and hence they are persons who are aggrieved ' by the award. The land acquisition officer will consider whether having regard to all the circumstances of the case he should make a reference under section 30 of the act or direct the petitioners to file a suit in a civil court.

(6) The writ petition is allowed, but in the circumstances without costs. Advocate's fee rs. 150. 00. Writ petition allowed.