Satyabhamabai Sitaram Deshmukh and anr. Vs. State of Maharashtra Through Collector - Court Judgment

Excerpt:
(a) land acquisition act, 1894 - section 31(2) & proviso and section 18 - award by collector - acceptance of compensation 'otherwise than under protest' - claimant cannot seek reference under section 18.;coming to proviso first to sub-section (2) of section 31 of the act, it may be stated that when the claimant is dissatisfied with the collector's award, it is but natural that he should take the earliest opportunity to signify his dissent from the same. he may refuse to receive the compensation or may receive it under protest as to the sufficiency of the amount and apply to the collector for a reference under section 18 of the act. it is true that under this proviso, a party who receives payment 'otherwise than under protest' cannot object to 'the sufficiency of the amount' and will not be entitled to make any reference under section 18 of the act. in that case the law presumes consent in the absence of any protest and in the event of a claimant receiving the compensation without recording his protest against it, he is precluded for ever from praying for a reference under section 18 of the act. therefore, a person who has taken payment without protest must be deemed to have waived his objections to the award, if any, cannot claim a reference thereafter.;(b) land acquisition act, 1894 - section 3(1-a) - award of solatium - automatically follows the market value of land acquired - it could not be undermined by any procedural blockades.;the importance of the award of solatium cannot be undermined by any procedural blockades. it follows automatically the market value of the land acquired, as a shadow would to a man. it springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. it follows as a matter of course without any impediment. that it falls to be awarded by the court 'in every case' leaves no discretion with the court in not awarding it in some cases and awarding in others. since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the court gets occasion to amend or rectify. this is the spirit of the provision, wherever-made. ';(c) land acquisition act, 1894 - sections 28 & 34 - award of interest - admissible at any stage of proceedings - substantive right granted under the act cannot be frustrated by any procedural hassle.;the interest to be paid under section 34 and also under section 28 is of different character than the compensation amount under section 23(1) of the act. whereas the interest, if payable under the act, can be claimed at any stage of the proceedings under the act, the amount of compensation under section 23 (1) which is in award-decree under section 26 is subject to the rules of procedure and limitation. the rules of procedure are hand-maiden of justice. the procedural hassle cannot come in the way of substantive rights of citizens under the act. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - it is well settled that where the claimant seeks payment by a formal application in which he records his willingness to receive payment under protest, the mere omission to repeat the word of protest in the receipt would not disentitle him to prosecute the application for enhancement. the evidence of witness for the claimants undoubtedly shows that the claimants filed an application clearly expressing their intention to receive the amount of compensation under protest.a.d. mane, j.1-this first appeal arises out of an order passed by the court below dismissing the reference made by the appellants under section 18 of the land acquisition act, 1894 (for short, the act).2. the lands owned by the appellants bearing survey nos. 192 and 195/1 admeasuring 30 hectares 76 acre situated at osmanabad were acquired for the purpose of m.i.d.c. the special land acquisition officer, passed his award on 15-2-1978. he valued the acquired land at the rate of rs. 1875 per acre. the claimants were served with the notice under section 12(2) of the act on 2-1-1979. it appears that immediately thereafter, the appellants raised objection to the valuation of the acquired land, by their application on 1-3-1979. on their request, reference under section 18 of the act was made to the court for determination of the compensation, as according to the claimants, the valuation made by the land acquisition officer was inadequate and was not acceptable to them.3. it may be stated that the reference of the present appellants, being land acquisition reference no. 25 of 1980 has been decided alongwith companion land acquisition reference no. 24 of 1980 preferred by the neighbouring land owners of land survey no. 195/2. the evidence led in land acquisition reference no. 24 of 1980 was also read as evidence for purpose of disposal of land reference of the present appellants. the learned judge of the court below by his common judgment, dismissed both the land references. in case of land acquisition reference no. 25 of 1980, the learned judge of the court below passed the following order.'their reference is dismissed on law point...'4. on behalf of the respondent-state an objection was raised to the maintainability of the land reference under section 18 of the act. it was stated that the claimants received the amount of compensation without protest and, therefore, they were disentitled to claim enhanced compensation. the learned judge of the court below has not specifically raised the issue on the basis of preliminary objection raised on behalf of the respondent-state but has rejected the present reference on the ground that the claimants were disentitled to make an application under section 18 of the act, because they have not accepted the compensation under protest, as required under section 31(2) of the act.5. it may be stated that in view of that finding, recorded by the learned judge of the court below on the point of non-tenability of the reference to civil court, the learned judge of the court below has also cursorily dealt with the evidence adduced by the claimants in regard to their claim for enhanced compensation. the learned judge of the court below, therefore, incidently answered other material issues against the claimants, even though it was held that the claimants have proved that compensation awarded by the special land acquisition officer was inadequate. it may further be stated that the special land acquisition officer in his award did not grant the amount of solatium nor the interest on the amount of compensation. the claimants have specifically claimed enhanced compensation in addition to the amount of solatium and interest. the learned judge of the court below, however, in answer to issues, 'what order about interest' and 'what order about solatium' recorded his findings in negative.6. the question arises, whether the decision of the court below is sustainable in law. coming to proviso first to sub-section (2) of section 31 of the act, it may be stated that when the claimant is dissatisfied with the collector's award, it is but natural that he should take the earliest opportunity to signify his dissent from the same. he may refuse to receive the compensation or may receive it under protest as to the sufficiency of the amount and apply to the collector for a reference under section 18 of the act. it is true that under this proviso, a party who receives payment 'otherwise than under protest' cannot object to 'the sufficiency of the amount' and will not be entitled to make any reference under section 18 of the act. in that case the law presumes consent in the absence of any protests and in the event of a claimant receiving the compensation without recording his protest against it, he is precluded for ever from praying for a reference under section 18 of the act. therefore, a person who has taken payment without protest must be deemed to have waived his objections to the award, if any, cannot claim a reference thereafter.7. let us consider whether the objection raised on behalf of the respondent for untenability of the reference under section 18 of the act on that ground is sustainable. at the out set it may be stated that beyond raising such an objection, the respondent led no material evidence to show that the claimants received the compensation otherwise than under protest. nevertheless, the evidence on record is that the amount was received by the claimants under protest. witness sitaram deshmukh, in his deposition at exhibit 9 has stated, '.....i have accepted the compensation under protest...' further in his cross-examination, his evidence is, '...i have already submitted an application indicating protest before accepting the compensation before land acquisition officer.....' there is no dispute that after the award was passed on 15-2-1978, notice under section 12(2) of the act was served on the claimants on 2-1-1979. there is, further no dispute that on 1-3-1979, the claimants filed application raising objection to the award indicating protest and that too before accepting the compensation. it is well settled that where the claimant seeks payment by a formal application in which he records his willingness to receive payment under protest, the mere omission to repeat the word of protest in the receipt would not disentitle him to prosecute the application for enhancement. that is what exactly the present case is. the learned judge of the court below is of the view that the protest against the quantum of compensation contemplated by second proviso to section 31(2) of the act is required to be in writing. this view is, however, incorrect. the protest against the quantum of compensation contemplated by the second proviso to section 31(2) is not required to be in writing. the protest is usually signified by an endorsement such as 'under protest' on the counter foil of the cheque or the receipt taken by the collector for payment, or in the statement recorded by the collector in the file on this point. the protest can be made firstly in the application for receiving disputed amount of compensation, if any such application has to be at all made and must be recorded in the receipt granted showing that the disputed amount of compensation money was accepted under protest. the evidence of witness for the claimants undoubtedly shows that the claimants filed an application clearly expressing their intention to receive the amount of compensation under protest. it was after having filed that application, the claimants received the compensation. it was, therefore, not necessary to repeat the protest in the receipt given by the claimants. it may be stated that neither the receipt, nor the counter foil of the cheque or noting on the filing has been produced in the evidence on behalf of the respondent. significantly, application of the claimants before receiving the amount of the compensation has also not been produced in the evidence on behalf of the respondent-state. consequently, the reference ought to have been held quite competent and maintainable before the civil court. the finding recorded by the learned judge of the court below is, therefore, ex facie erroneous. that finding is required to be reversed as the reference was competent under section 18 of the act.8. i have already pointed out that the learned judge of the court below dismissed the reference only on the law point as herein above discussed and, therefore, his findings on other issues are not only faulty but perverse. the learned judge of the court below have no reason whatsoever to decline to grant solatium and also interest on the amount of compensation. it may be stated that 'the importance of the award of solatium cannot be undermined by any procedural blockades. it follows automatically the market value of the land acquired, as a shadow would to a man. it springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. it follows as a matter of course without any impediment. that it falls to be awarded by the court 'in every case' leaves no discretion with the court in not awarding it in some cases and awarding in others. since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the court gets occasion to amend or rectify. this is the spirit of the provision, wherever made. narain das jain v. agra nagar mahapalika, : [1991]1scr389 . similarly, 'the interest to be paid under section 34 and also under section 28 is of different character than the compensation amount under section 23(1) of the act. whereas the interest, if payable under the act, can be claimed at any stage of the proceedings under the act, the amount of compensation under section 23(1) which is in award-decree under section 26, is subject to the rules of procedure and limitation. the rules of procedure are hand-maiden of justice. the procedural hassle cannot come in the way of substantive rights of citizens under the act. shree vijay cotton & oil mills ltd. v. state of gujarat, : air1991sc656 . the learned judge of the court below has, therefore, committed further gross error of law in not considering the claim of the claimants for solatium and interest under the act.9. in my view, here is the case wherein reference under section 18 of the act has been disposed of by the court below on a preliminary point and that too wrongly. the judgment delivered in the case is also wholly intelligible and incomprehensible in the matter of fixation of market price for purpose of granting enhanced compensation of the land acquired. in such circumstances, the only recourse is to remand the case to the court below for afresh disposal in accordance with law.10. in the result the appeal is allowed. the impugned judgment and order passed by the court below is hereby quashed and set aside and the land reference case is remanded to the court below for disposal afresh in accordance with law. liberty to parties to lead further evidence on issue nos. 2, 3 and 4, if they so desire. the court below shall dispose of the reference as expeditiously as possible, preferably within a period of six months from the date of receipt of the record.there shall, however, be no order as to costs.