JUDGMENT
Ajit J. Gunjal, J.
1. Claimant No.2 in LAC 16/83 has filed this appeal under Section 54(1) of the Land Acquisition Act. The limited prayer which is sought for by the appellant in this appeal is that she alone is entitled to receive the compensation amount with all benefits in respect of R. Sy. No. 11/A/l of Chikkasangam village.
2. Facts in brief are: That certain lands belonging to the appellant and legal representatives of the respondent herein, namely, Sy. Nos. 3/1B measuring 2 acres 28 guntas; Sy. No. 11/A/l measuring 3 acres 10 guntas; Sy. No. ll/A/2 measuring 3 acres 36 guntas; and Sy. No. 11/B measuring 22 guntas was acquired under the preliminary notification under Section 4(1) of the Land Acquisition Act dated 10.10.1990. In pursuance of the said notification, the parties to this appeal ie., the appellant and the original respondent filed claim petitions seeking compensation of Rs. 35,000/- per acre for irrigated lands. The Land Acquisition Officer, after due enquiry, awarded a sum of Rs. 4200/- and Rs. 3200/- per acre for irrigated and dry lands respectively. The said compensation was accepted under protest. They sought for reference under Section 18 of the Land Acquisition Act seeking enhancement. The learned Civil Judge on assessing the material on record came to the conclusion that the claimants are entitled to Rs. 7700/- per acre for dry lands and Rs. 11,550/- for irrigated lands. This judgment passed by the Reference Court has attained finality. It appears an applications was filed by the appellant under Order 9 Rule 13 of C.P.C. for setting aside ex parte decree for placing her ex parte in the reference proceedings. Suffice it to say the said application was numbered as Misc. No. 20/87. The Reference Court passed an order on the said application to the effect that the said application for placing her ex parte was not diligently prosecuted and ultimately rejected the said application and permitted the appellant to file an application under Order 1 Rule 10 of CPC in the execution proceedings. With this observation, the said Misc. proceedings were disposed of.
3. Since the said amount as determined by the Reference Court was not deposited, execution proceedings were initiated in Execution No. 236/88. In view of the observation made by the learned Judge in the Misc. proceedings, the appellant filed an application under Order 1 Rule 10(2) of the C.P.C. R/w Section 151. The executing Court, in view of the order passed by the Reference Court in Misc. No. 20/87, allowed the application for impleading and permitted the appellant to come on record. The said order, along with the order passed by the Reference Court in Misc. proceeding, was challenged in a revision petition before this Court in CRP 129/98 and CRP 259/98. This Court allowed the revision Petitions reserving liberty to the appellant to file an appeal against the award passed in favour of the original respondent before an appropriate Court. In these circumstances, the present appeal has come up.
4. Mr. Ashok R. Kalyanshetty, learned Counsel appearing for the appellant would strenuously contend that the Reference Court was clearly in error in not issuing a notice to the appellant. He would submit that since the appellant in an interested party in the said proceedings notice ought to have been issued to her. He would further submit that in the reference proceedings under Section 18 the Courts are also empowered to apportion the compensation. He also drew my attention to the fact that this appeal is filed in pursuance of an order passed by this Court in the revision petitions mentioned above. He would submit that, in the circumstances, the reference Court be directed to adjudicate upon the apportionment and also regarding the share of the appellant.
5. Per contra, Mr. Hebballi, learned Counsel appearing for the legal heirs of the original respondent would contend that much water has flown under the bridge since the date of reference and the date of dismissal of miscellaneous proceedings. He would submit that the only course open to the appellant is to file a suit seeking her share in the compensation amount awarded by the Reference Court. He would submit that at this point of time, it is not open to the appellant to contend that she is entitled for a share in the compensation amount. He also drew my attention to the reference application made by the appellant as well as the original respondent. He would submit that the said reference application is a combined application in respect of all the properties and in the said application nowhere it is stated that the appellant is entitled for compensation in respect of the lands. In view of this he would submit that the only course open to the appellant is to initiate separate proceedings for her share in the compensation amount if at all she is entitled to.
6. I have given my anxious consideration to the rival submissions made on either side.
7. A perusal of the reference application which is a part of the Trial Court’s records would clearly indicate that the original respondent had sought reference in respect of Sy. Nos. 3/iB 11/A/l, 11/A/2 and in respect of Sy. No. 11/B. The names of the appellants as well as the original respondent are shown as the persons interested in the said lands. The reference application would disclose that the appellant had not laid a claim in respect of the other three lands and she had an interest to the extent of half a share in Sy. No. 11/B. Further it is to be noticed that while dealing with the reference application the Reference Court has observed that claimant No.2 (Appellant) is entitled to compensation in respect of 11/B to the extent of half a share. In view of the fact that the claim of the appellant is confined only to half a share in Sy. No. 11/B, at this point of time the question is whether she is entitled for an order of remand only to determine whether she is entitled for compensation in respect of other properties. The reference application, as stated above, would clearly indicate that she has not laid any claim in respect of the other properties. The question whether there was a partition in the family prior to the reference application also will have to be gone into. The question is whether the said proceedings can be gone into in a reference application under Section 18. In this regard, the observations made by the Apex Court in identical situation, in Dr. G.H. Grant v. The State Of Bihar, which reads as under:
“There are two provisions, Section 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, authorises 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 right 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.
We are unable to agree with the view expressed by the Mysore High Court in Boregowda v. Subbaramiah, AIR 1959 Mys 265,, that if the Collector has made apportionment of the compensation money by his award his power to refer to dispute under Section 30 cannot be exercised. Clause (iii) of Section 11 enjoins the Collector to apportion the compensation money among persons known or believed to be interested in the land; he has no discretion in the matter. Exercise of the power under Section 30 to refer the dispute relating to apportionment or as to the persons to whom it is payable is, it is true, discretionary, the Collector may, but is not bound to exercise that power. It is however not predicated of the exercise of that power that the Collector has not apportioned the compensation money by his award. We are also unable to agree with the Mysore High Court that the power under Section 30 of the Land Acquisition Act has to be exercised on a motion within the period prescribed by Section 18(2) of the Land Acquisition Act. In our judgment the powers exercisable by the Collector under Section 18(1) and under Section 30 are distinct and may be invoked in contingencies which do not overlap.”
The observation made in the said judgment squarely apply to the facts of the case. Even at this point of time it is open to the appellant to seek a reference under Section 30 of the Land Acquisition Act or file a suit claiming her share.
8. In view of what is stated above, the appeal is disposed of with an observation that it is open to the appellant to seek a reference under Section 30 of the Land Acquisition Act or to institute an appropriate proceeding to claim her share in the compensation awarded by the Reference Court on the ground that she is also entitled for a share in the properties.
With these observations, the appeal stands disposed of.