Executive Engineer, Minor Irrigation Division Vs. Mainabai Wd/O Khushyalrao Dangore and ors. - Court Judgment

C.L. Pangarkar, J.

1. These four appeals can be decided together since identical questions are involved in them.

2. The facts are as follows:

The Government of Maharashtra issued a Gazette Notification on 6-4-1988 acquiring the land in question for Khumari Talao, Minor Irrigation Project. The Land Acquisition Officer passed an award against the State on 26-6-1992. A reference was made under Section 18 of the Land Acquisition Act to Civil Court and the references were registered as Land Acquisition Cases. In the said reference cases there were three non applicants namely (1) State of Maharashtra (2) Land Acquisition Officer and (3) Collector. The Civil Court passed an award in the said cases on 31-1-2001. Dissatisfied with the award the Executive Engineer of the Minor Irrigation Division Nagpur preferred these appeals. The appeals came to be presented on 6-6-2001. Later on Vidarbha Irrigation Development Corporation (hereinafter referred to as VIDC) moved an application for adding it as party/appellant. This application is opposed by the respondent.

3. I have heard the learned Counsel for the appellants as well as for respondents. The learned Counsel for the VIDC submits that VIDC seeks to add itself as party-appellant on the ground first that it has taken over Minor Irrigation Project from the Minor Irrigation Department of Government of Maharashtra, secondly it is now liable to pay enhanced compensation and thirdly no notice was given to it even though it is an acquiring body.

4. Shri Najbile learned Counsel for the respondent raised an objection that the appeal itself is incompetent as it is preferred by an authority who had no right to do so. He submits that the VIDC had come into existence in 1998 itself and the project stood transferred to it in 1998 only. He submits that therefore the appeal against the order which came to be passed by the Reference Court on 31-1-2001 should have been preferred by the VIDC and the same having not been preferred by the VIDC the appeal is not maintainable. He also submits that the VIDC did not apply before the Civil Court to add itself as party and though Corporation was in existence on the day Civil Court passed an award on 31-1-2001. The learned Counsel for the VIDC submits that this controversy has been decided by the Division Bench of this Court as well as by the Supreme Court. He submits that such an appeal is maintainable and competent and even if the VIDC did not apply for adding it as party that could make no difference. This Court observed while deciding First Appeal No. 40 of 2007 at Nagpur Vidarbha Irrigation Development Corporation through its Executive Engineer Bembla Project Division Yeotmal v. Shyam Dnyaneshwar Kadam and Ors., dated 4th June 2007 as follows:

Mr. Sambre, Adv., on the other hand, contends that the Award under Section 11 of the Land Acquisition Act in this case has been declared on 30-3-1996 and the Reference under Section 18 of the Land Acquisition Act has been filed on 18-5-1996. He further contends that the Award mentions the State Government as an acquiring body and the appellant VIDC (Vidarbha Irrigation Development Corporation) has been established after 1997 as the Act giving birth to the same received accent of the Hon'ble President in the year 1998. He further contends that on all the relevant dates the VIDC itself was not in existence and therefore, the First Appeal is not at all maintainable. He has placed reliance upon the Division Bench judgment reported at : (2003)1BOMLR445 , Municipal Council, Jalna v. State of Maharashtra and Ors., particularly the paragraph 14. He further states that during pendency of appeal, amount of enhanced compensation has been deposited by the appellant before the lower Court and the lower Court permitted the respondent to withdraw the same after putting certain conditions for that purpose. He further contends that for all practical purposes, the appeal has become infructuous.

We have considered the Division Bench judgment on which Mr. Sambre, Adv. has placed reliance. We find that the subsequent judgments on which Mr. Gilda, Adv. has placed reliance are not considered therein and the only judgment in the case of U.P. Awas Evam Vikas Parishad v. Gyan Devi (dead) by L.Rs. and Ors. : AIR1995SC724 has been considered. The Subsequent judgment reported at : [2002]1SCR615 (cited supra) puts the controversy beyond confusion and the observations of the Hon'ble Apex Court in paragraph Nos. 7 to 11 help the present appellant. The said judgment is followed by the Division Bench of this Court in the case of Bharat Sanchar Nigam Ltd. v. Bhayyasaheb Bhauraoji Deshmukh and Ors. 2004 (5) BCR 115. In the circumstances, it is apparent that the appellant was in existence on 23rd December, 2005 i.e. the date on which the impugned judgment has been pronounced and it has to deposit the enhancement amount of compensation. In fact, from the facts disclosed above, it is apparent that the said amount has been deposited by the appellant. In the circumstances, following the above judgment, we allow the appeal. The appeal is accordingly allowed. -Rule accordingly. No costs.

The impugned judgment dt. 23rd December, 2005 delivered by the Civil Judge (Sr. Dn.), Yavatmal in L. A. C. 114 of 2000 is hereby quashed and set aside and the said case is restored back to the file of said Court for disposal in accordance with law. The appellant is added as a party-defendant and is directed to file Written Statement within a period of 60 days from the date of communication of this order to the trial Court.

Supreme Court in Abdul Razzak and Ors. v. Kerala Water Authority and Ors. AIR 2002 SCW 477 has observed thus:

Shri T.L.V. Iyer, the learned senior counsel for the claimant-appellants has submitted that Kerala Water Authority is successor of Public Health Engineering Department of the State Government and bound by the proceedings conducted by or against the State Government and, therefore, the Constitution Bench decision does not have any applicability to the facts of the present case and the High Court ought not to have set aside the awards and remanded the cases to the reference Court. We find it difficult to subscribe to the view so forcefully canvassed by the learned senior counsel for the appellants. K. W. A. came into existence as a statutory Corporation on 1st April, 1984. It may be said to have succeeded to the liability incurred by the State Government so far as the quantum of compensation awarded by the Collector is concerned but so far as the enhancement in the quantum of compensation is concerned, it will be a liability of the K. W. A. incurred by it after its coming into existence and, therefore, to the extent of enhancement, the Authority was certainly entitled to notice and right to participate in the proceedings before the reference Court leading to enhancement of compensation.

The facts in Abdul Razzak's case are almost identical with the case at hand. Notification under Section 4 was issued in 1981 and then a declaration under Section 6 was made in 1983. The Land Acquisition Officer determined the compensation and passed an award on 15-6-1986. Reference to Civil Court was decided between 1989 to 1991. An appeal to High Court was preferred by Government of Kerala and Kerala Water Authority (referred to as KWA). An Act establishing KWA was passed in March 1986 with retrospective effect. In fact, therefore, when the proceedings were pending before the Land Acquisition Officer the Act had come into force and the KWA had become an acquiring body as it had taken over the said project. It is apparent that even before the reference Court KWA was not added as party but for the first time it preferred an appeal to the High Court. In the case at hand also VIDC is sought to be added as party only in the High Court.

5. In Abdul Razzak's case the Supreme Court relying on a ratio in U.P. Awas Ewam Vikas Parishad v. Gyan Devi case reported in : AIR1995SC724 held that the KWA may be said to have succeeded to the liability incurred by State so far as quantum of compensation awarded by the Collector is concerned but so far as enhancement in the quantum of compensation awarded by the Reference Court is concerned the liability would be that of KWA and therefore to the extent of enhancement, the authority was certainly entitled to notice and right to participate in the proceedings before the reference Court. The Supreme Court further relying on a decision in Agra Development Authority v. Special Land Acquisition officer and Ors. in 2001 2 SCC 646 held that even though local authority may be aware of the proceedings a notice was mandatory. Shri Najbile learned Counsel contended that in the instant case the VIDC was aware of the proceedings yet it did not apply to add it as party. The argument of Shri Najbile the learned Counsel for the respondent has to be rejected on the basis of what has been observed by the Supreme Court as quoted above.

6. Shri Najbile the learned Counsel had contended that the State Government was party to the proceedings and the VIDC is a statutory corporation and is a State within the meaning of Article 12 of the Constitution of India. No doubt it can be treated as a State but then it is an independent corporation. It is an independent body and it has to maintain its own funds under Section 30 and it has even power to borrow. It appears that it can raise its own funds. It is therefore further apparent that it has to shell out the compensation from out of its own resources and funds. Since it is a body which has to shell out the money, that body ought have a notice even though it may be a State within the meaning of Article 12.

7. Shri Najbile the learned Counsel contended that decision in Abdul Razzak's case is per incurium since it is a decision in which the decision of the Supreme Court in Modi Spinning and Weaving Mills v. Virendra and Ors. : (1998)5SCC718 has not been considered. He submits that the decision in Modi Spinning case is rendered by the 3 Judge Bench of the Supreme Court while Abdul's Razzak's case judgment is rendered by the two Judge Bench of the Supreme Court. He submits that in Modi Spinning case Supreme Court has refused to grant leave and issue notice under requirement No. 7 in Gyan Devi's case. After having gone through the said decision it appears to me that the Supreme Court in the facts and circumstances of that case had refused to grant leave. It did not lay down a ratio contrary to what is laid down in Gyan Devi's case. On the other hand Supreme Court has followed the ratio in Gyan Devi's case. The Supreme Court in Modi Spinning case was answering a reference made to it by a Bench of the Supreme Court due to conflict in the decision. The question referred was as to the competence of a Company to file appeal or to maintain a petition and appeal for whose benefit the land may be acquired. Supreme Court observed in para 3 as follows:

The question of law referred stands answered by a Constitution Bench of this Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi. In para 24 of the Report, the Bench has summed up their conclusions. Conclusions 6 to 10 are important for our purposes. They are quoted below.

Thus Supreme Court has in fact concurred with the decision in Gyan Devi's case. It is for this reason also that it must be said that the Supreme Court had refused to grant leave in the facts and circumstances of that case. That is not the ratio as is suggested by Shri Najbile. The submission of Shri Najbile that the decision in Abdul Razzak's case is not a good law has no force. The decision in Abdul Razzak's case cannot be said to be per in-curium. On the other hand the decision in Gyan Devi's case has been followed in Modi Spinning case as well as in Abdul's case. In the result VIDC is entitled to be added as party and was in fact entitled to notice. Relying on ratio in Abdul Razzak's case the matters need to be remitted to Civil Court. In the result the appeals must succeed. The application for addition of party is allowed.

8. The appeals are allowed. All Land Acquisition Cases are remanded back to the Civil Judge Senior Division for fresh decision in the matter according to law. The Civil Judge Senior Division shall permit the Vidarbha Irrigation Development Corporation to file Written Statement since its application for adding it as party has been allowed. The Written Statement be filed within a period of 60 days from the date the parties appear before the Civil Judge, Senior Division. The parties shall appear before Civil Court on 25-3-2008.