JUDGMENT
M.M. Das, J.
1. In this writ petition, the petitioner seeks to challenge the order dated 7.7.2005 passed by the Special Land Acquisition Officer-opp. party No. 1 rejecting his application for reference of the dispute under Sections 18 and 30 of the Land Acquisition Act, 1894.
2. The facts of the case reveal that certain lands were acquired under the provisions of the Land Acquisition Act, 1894 (for short, ‘the Act’) and the opp. party No. 1 being the Special Land Acquisition Officer passed an award as contemplated under Section 12 of the Act in favour of the recorded owners whose name found place in the record of rights with respect to the acquired land. The petitioner filed an application before the Special Land Acquisition Officer claiming that he is entitled to a portion of the compensation awarded being a joint owner and sought for reference of the dispute under Sections 18 and 30 of the Act. The opp. party No. 1 by order dated 7.7.2005 rejected the application of the petitioner on the ground that the process of land acquisition was based on the current settlement record and individual right, title and interest of the recorded tenants cannot be denied and further, the right, title and interest of the petitioner who is not a recorded tenant cannot be decided in a land acquisition proceeding. He further directed disbursement of the awarded amount in favour of the awardees pursuant to the award passed by him.
3. It appears that a civil suit for partition being Civil Suit No. 81 of 2005 is pending before the learned Civil Judge (Sr. Division), Bolangir in which the petitioner though made a prayer for an interim order of injunction to restrain the Special Land Acquisition Officer, Bolangir (opp. party No. 1) from disbursing the compensation amount to the opp. parties (defendants), but no such order was issued by the civil Court by the day the impugned order was passed by the opp. party No. 1.
4. Mr. Mukherjee, learned Counsel for the petitioner submits that the reason given in the impugned order by the opp. party No. 1 that since the land acquisition process is based on current settlement records and individual right, title and interest of the recorded tenants cannot be denied at present and, as such, no reference can be made either under Section 18 or under Section 30 of the Act, is fallacious. According to Mr. Mukherjee, a reference under Section 18 or under Section 30 of the Act can be made at the instance of any person interested in the compensation awarded or in the land acquired.
5. Learned Counsel for the State, on the contrary, submitted that Section 11 of the Act provides that on the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections, if any, which any person interested has stated pursuant to a notice given under Section 9 of the Act with regard to the measurement made under Section 8 of the Act and with regard to the value of the land on the date of publication of the notification under Section 4(1) and into the respective interest of the persons claiming the compensation. After causing such enquiry, the Collector shall make an award in respect of the true area of the land, the compensation which in his opinion should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom or of whose claims he has information, whether or not they have respectively appeared before him. According to the learned Counsel for the State after passing of the award, the same is required to be filed in the Collector’s office under Section 12 of the Act and shall be final and conclusive as between the Collector and the persons interested, whether they have appeared before the Collector or not, with regard to the area, value and apportionment of compensation amongst the persons interested. He, therefore, submitted that since before the award was passed by the opp. party No. 1, no objection whatsoever was filed by the petitioner under Section 9 of the Act, there was no scope for the opp. party No. 1 to decide and pass an award with regard to the claim of the petitioner.
6. With respect to the allegation made by the petitioner that his application filed before the opp. party No. 1 for reference under Section 18 of the Act has been illegally rejected, learned Counsel for the State submitted that the petitioner is neither entitled to claim for a reference under Section 18 of the Act nor the application filed by the petitioner was within the time as stipulated in Section 18 of the Act. Drawing the attention of this Court to the said Section 18 of the Act, learned Counsel for the State submitted that the said section provides that any person interested who has not accepted the award may by written application to the Collector, require the matter to be referred for the determination of the Court with regard to his objection in respect of either measurement of the land or the amount of compensation or the persons to whom it is payable or the apportionment of the compensation among the persons interested. The said Section further requires that such application can be filed by only persons in whose favour the award has been made and that too, within six weeks from the date of the award if he was present or represented before the Collector when the award was passed or in any other case, within six weeks of the receipt of the notice from the Collector under Section 12(2) of the Act or within six months from the date of the Collector’s award, whichever period shall first expire.
7. In the instant case, learned Counsel for the State submitted that the petitioner was not one of the awardees and, therefore, question of his not accepting the award or accepting the same with objection did not arise. Therefore, the application for reference under Section 18 of the Act at the behest of the petitioner is not maintainable.
8. Considering the above, we hold that no reference under Section 18 of the L.A. Act could have been made by the Special Land Acquisition Officer, opp. party No. 1, at the instance of the petitioner.
9. With regard to the claim of the petitioner for reference under Section 30 of the Act, learned Counsel for the State submitted that the said power of the Land Acquisition Collector is a discretionary one and the opp. party No. 1 having given good and cogent reasons in the impugned order while rejecting the prayer of the petitioner for making a reference under Section 30 of the Act, the said order cannot be interfered with.
10. In order to resolve the dispute, it is felt necessary to refer to Section 30 and the third proviso to Sub-section (2) of Section 31 of the Act which is quoted hereunder:
30. Dispute as to apportionment – When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.”
31. Payment of compensation or deposit of same in Court (1) - xxx xxx xxx (2) xxx xxx xxx Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. 11. In the case of Dr. G.H. Grant v. The State of Bihar , the Supreme Court in the majority view dealing with a similar dispute after scanning various provisions of the Act and comparing the applicability of Sections 18 and 30 of the Act held as follows:
There are two provisions, Sections 18(1) and 30, which invest the Collector with power to refer to the Court a dispute as to apportionment of compensation or as to the persons to whom it is payable. By Sub-section (1) of Section 18 the Collector is enjoined to refer a dispute as to apportionment, or as to title to receive compensation, on the application within the time prescribed by Sub-section (2) of that Section of a person interested who has not accepted the award. Section 30 authorizes the Collector to refer to the Court after compensation is settled under Section 11, any dispute arising as to apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable. A person shown in that part of the award which relates to apportionment of compensation, who is present either personally or through a representative, or on whom a notice is served under Sub-section (2) of Section 12, must, if he does not accept the award, 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 proceeding before the Collector may, if he is not served with notice of the filing, raise a dispute as to apportionment or as to the persons to whom it is payable, and apply to the Court for a reference under Section 30, for determination of his tight to compensation which may have existed before the award, or which may have devolved upon him since the award. Whereas under Section 18 an application made to the Collector must be made within the period prescribed by Sub-section (2) Clause (b), there is no such period prescribed under Section 30. Again under Section 18 the Collector is bound to make a reference on a petition filed by a person interested. The Collector is under Section 30 not enjoined to make a reference: he may relegate the person raising a dispute as to apportionment, or as to the person to whom compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award.
12. In view of the above interpretation of Section 30 made by the Supreme Court that a person who has not appeared in the acquisition proceeding before the Collector may, if he is not served with notice, raise a dispute as to apportionment or as to persons to whom it is payable, can apply to the Court for a reference under Section 30 of the Act for determination of his right to compensation which may have existed before the award or which may have devolved upon him since the award, we are of the considered opinion that the petitioner had a locus standi to make an application under Section 30 of the Act with regard to his entitlement for compensation and apportionment of his share.
(emphasis supplied.)
13. The admitted fact that a suit for partition is pending between the parties is a relevant fact in support of the claim of the petitioner which is subject to adjudication.
14. In view of the above, we find that the opp. party No. 1 has committed an error of law in holding that since no temporary injunction order has been passed in the pending partition suit and the petitioner is not a recorded tenant in respect of the lands acquired, the application for reference under Section 30 of the Act has no merit. Thus, the impugned order dated 17.7.2005 under Annexure-2 to the writ petition passed by the opp. party No. 1 refusing to make a reference under Section 30 of the Act cannot be sustained and is accordingly quashed.
15. The opp. party No. 1 is directed to make a reference under Section 30 of the Act for adjudication of the claim of the petitioner. As it appears that this Court by order dated 24.10.2005 directed that the awarded amount be deposited in this Court within a period of two weeks from that day and subsequently, by order dated 9.5.2006 recorded the submission of the learned Counsel for the State that the awarded amount might have been released in favour of the awardees/ claimants, we further direct that in the event the awarded amount has not yet been disbursed, the same shall be deposited in the Court to which the reference under Section 30 of the Act shall be made. We further direct that such reference under Section 30 shall be made by the opp. party No. 1 within a period of two weeks from the date of production of the certified copy of this judgment before him. By the time the reference under Section 30 of the Act reaches the referral Court, if the partition suit between the parties being Civil Suit No. 81 of 2005 remains pending, the reference under Section 30 of the Act shall be heard along with (one after the other) the said suit for partition by the competent Court. It is needless to mention that in the event the awarded amount has already been disbursed, the claim of the petitioner shall abide by the result of partition suit and the reference made under Section 30 of the Act.
The writ application is accordingly allowed.
S.B. Roy, C.J.
16. I agree.