Full Judgment Text
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CASE NO.:
Appeal (civil) 2045 of 2003
PETITIONER:
Vijayadevi Navalkishore Bhartia & Anr.
RESPONDENT:
Land Acquisition Officer & Anr.
DATE OF JUDGMENT: 05/03/2003
BENCH:
N.Santosh Hegde & B.P.Singh
JUDGMENT:
O R D E R
Heard learned counsel for the parties
Leave granted.
The appellants are the owners of the land situated in
Akola district, Maharashtra. The State Government issued a
notification under Section 4 of the Land Acquisition Act (the
Act) proposing to acquire the lands belonging to the appellants.
A notice was also issued to the appellants under Section 9 of
the Act for submitting their claim to compensation in respect of
the area under acquisition. The appellants submitted their claim
contending that the land under acquisition was converted to
non-agricultural use by the order of the Sub-Divisional Officer,
Akola, dated 3.3.1983. The appellants also pointed out that by
the said order, residential lay outs were sanctioned in the lands
sought to be acquired and plots were also demarcated. The
appellants also pointed out that the lands in question were
surrounded by developed colonies with residential quarters,
industries, marketyards and other commercial complexes in the
near vicinity. The appellants also contended that the land is
close to national highway and State bus-stand. On the said basis
the appellants claimed a compensation @ Rs.1.75 per sq. ft.
Based on the claim of the appellants, the Collector who held an
inquiry under Section 11 of the Act, called for information
report from the Assistant Director of Town Planning for
determination of the compensation payable. The said Asstt.
Director of Town Planning in turn referred the matter to the
Director, Town Planning, Pune, who as per his letter dated
20.10.2000 taking into consideration the non-agricultural
potentiality of the lands and other prevailing factors, directed
that the lands in question should be valued taking into
consideration the non-agricultural potentiality of the land.
Based on the said recommendation of the Director of Town
Planning, the Asstt. Director, Town Planning, evaluated the
land and held that the total value of the land is Rs.21,76,622/-
per hectare. The said finding was given also taking into
consideration the sales transactions of the lands in the near
vicinity. The Land Acquisition Officer (the Collector) on the
basis of the said report, prepared a proposed award wherein he
fixed the plot area as 53,991 sq. meters and fixed the valuation
at Rs.130/- per sq. meter. From the said valuation, he deducted
8% towards the period of 2 years which would be required for
selling of the plots by the appellants and after giving deduction
to such deferred payment, he fixed the compensation payable to
the appellant at Rs.1,82,29,048/-.
The said proposed award was sent to the Commissioner,
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Amravati Division, respondent No.2 herein, as required under
the proviso to Section 11(1) of the Act for his approval. The
said Commissioner as per his order dated 28.3.2001 after
reappreciating the material on record, came to the conclusion
that the lands in question remained to be agricultural lands,
therefore, the value fixed by the Collector treating the same as
potentially non-agricultural land, was erroneous and he came to
the conclusion that the value should be Rs.72,400/- per hectare.
He also reconsidered the additions and deductions made by the
Collector and came to the conclusion that the valuation made
by the Collector was improper hence directed the Collector to
refix the compensation as directed in his order dated 28.3.2001.
It is against this order of the Commissioner made under
the proviso to Section 11(1) of the Act that the appellants filed
a writ petition before the High Court of Mumbai, Nagpur
Bench, contending that the Commissioner acting under the
proviso to Section 11(1) of the Act had no jurisdiction to
reappreciate the material found in the records of the Collector
as an appellate authority. It was also contended that the
authority of the Commissioner acting under the said provision
of law was only to approve or not to approve the award made
by the Land Acquisition Officer (the Collector). The High
Court rejected this contention holding that the Commissioner
under the Act when required to give prior approval for the
award can re-appreciate the material relied on by the Collector,
hence the High Court held that the order of the Commissioner
did not call for interference, hence, dismissed the writ petition.
The High Court also held that if the appellants were aggrieved
by the reduction in the market value, they could approach the
Reference Court under Section 18 of the Act.
Mr. V A Mohta, learned senior counsel appearing for the
appellants, reiterated the contention of the appellants urged
before the High Court and further contended that under the
Scheme of the Act, the proceeding before the Collector under
section 11 is a quasi-judicial proceeding wherein the Land
Acquisition Officer is statutorily required to make an award
taking into consideration the factors enumerated in the said
section after giving notice to the interested persons. In the said
proceedings, the determination of the market value or the
compensation payable to the claimants is to be done on the
satisfaction of the Collector based on the material on record and
not based on any other authority’s satisfaction. Learned counsel
contended that the requirement of prior approval found in the
proviso to Section 11(1) is not an appellate power but only an
administrative act of accepting or not accepting the proposed
award made by the Collector, therefore, the Commissioner had
no jurisdiction to reappreciate the evidence. While exercising
the said authority of approval of the Collector’s award the
Commissioner at the most may not grant approval of the said
award, but he can not sit in appeal against the said award.
Mr. V.B. Joshi, learned counsel for the respondents
contended that the very fact that there is a statutory requirement
of obtaining prior approval would ipso facto mean that the
approving authority in the instant case the Commissioner, had
to examine the correctness of the finding of the Collector
therefore in that process he has every right to disagree with the
Collector based on material on record hence there is no error or
want of jurisdiction as contended by the appellants when the
Commissioner remanded the matter to the Collector to refix the
market value and compensation payable based on the directions
issued by him. He alternatively contended that assuming that
the Commissioner had no appellate power, such power is
definitely available to the appropriate Government under
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Section 15A of the Act which power can also be exercised by
the Commissioner.
The issue in this appeal centres around the question of
the authority of the Commissioner exercising a power under the
proviso to Section 11(1) of the Act to reconsider the material on
record and to disagree with the finding of the Collector and
further to issue directions to the Collector to fix the market
value/compensation in a manner he thinks appropriate. While
the appellants contend no such power vests with the
Commissioner, the respondents contend that the Commissioner
is vested with such power.
From the Scheme of the Act, it is seen that the power of
inquiry under Section 11 vests with the Collector who has to
issue notice to the interested persons and hear the interested
persons in the said inquiry. He also has to determine the
measurements of the land in question and on the basis of
material on record decide the compensation which in his
opinion should be allowed for the land and if need be, he can
also apportion the said compensation amongst the interested
persons. The nature of inquiry which statutorily requires the
interested parties of being heard and taking a decision based on
relevant factors by the Collector shows the inquiry
contemplated under Section 11 is quasi-judicial in nature, and
the said satisfaction as to the compensation payable should be
based on the opinion of the Collector and not that of any other
person. Section 11 under the Act has not provided an appeal to
any other authority as against the opinion formed by the
Collector in the process of inquiry conducted by him. What is
provided under the proviso to Section 11(1) is that the
proposed award made by the Collector must have the approval
of the appropriate Government or such officer as the
appropriate Government may authorise in that behalf. In our
opinion, this power of granting or not granting previous
approval cannot be equated with an appellate power. Black’s
Law Dictionary, 6th Edition, defines ’approval’ to mean an act
of confirming, ratifying, assenting, sanctioning or consenting to
some act or thing done by another. In the context of an
administrative act, the word ’approval’ in our opinion, does not
mean anything more than either confirming, ratifying,
assenting, sanctioning or consenting. It will be doing violence
to the Scheme of the Act if we have to construe and accept the
argument of learned counsel for the respondents that the word
approval found in the proviso to Section 11(1) of the Act under
the Scheme of the Act amounts to an appellate power. On the
contrary, we are of the opinion that this is only an
administrative power which limits the jurisdiction of the
authority to apply his mind to see whether the proposed award
is acceptable to the Government or not. In that process for the
purpose of forming an opinion to approve or not to approve the
proposed award the Commissioner may satisfy himself as to the
material relied upon by the Collector but he cannot reverse the
finding as if he is appellate authority for the purpose of
remanding the matter to the Collector as can be done by an
appellate authority; much less can the Commissioner exercising
the said power of prior approval give directions to the statutory
authority in what manner he should accept/appreciate the
material on record in regard to the compensation payable. If
such a power of issuing direction to the Collector by the
Commissioner under the provision of law referred to
hereinabove is to be accepted then it would mean that the
Commissioner is empowered to exercise the said power to
substitute his opinion to that of the Collector’s opinion for the
purpose of fixing the compensation which in our view is
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opposed to the language of Section 11 of the Act. Therefore, we
are of the opinion that the Act has not conferred an appellate
jurisdiction on the Commissioner under Section 15(1) proviso
of the Act. This conclusion of ours is further supported by the
scheme of the Act and Section 15A of the Act which is also
introduced in the Act simultaneously with the proviso to
Section 11(1) under Act 68 of 1984. By this amendment, we
notice that the Act has given a power akin to the appellate
power to the State Government to call for any records or
proceedings of the Collector before any award is made, for the
purpose of satisfying itself as to the legality or propriety of any
finding or order passed or as to the irregularity of such
proceedings and to pass such other order or issue such direction
in relation thereto as it may think fit. Therefore it is not as if the
acquiring authority namely the appropriate Government even if
aggrieved by the fixation of compensation by the Collector it
has no remedy. It can very well exercise the power under
Section 15A and pass such orders as it thinks fit, of course,
after affording an opportunity to such person who is likely to be
prejudicially affected by such order of the appropriate
Government, therefore, it is clear that the statute when it
intended to give appellate or revisional power against the
finding of the Collector in the fixation of compensation it has
provided such power separately in Section 15A of the Act.
Therefore, in our opinion, if the Commissioner while
considering the proposed award of the Collector under the
proviso to Section 11(1) of the Act to grant or not to grant
approval if he thinks that the order of the Collector cannot be
approved, he can at the most on the administrative side bring it
to the notice of the appropriate Government to exercise its
power under Section 15A of the Act, but he cannot as in the
present case on his own exercise the said power because that
power under Section 15A is confined to the appropriate
Government only. Therefore we have to negative the argument
of Mr. Joshi that it is open to the Commissioner while
considering the grant of approval to exercise the power either
found in Section 15A of the Act or similar power exercising his
jurisdiction under proviso to Section 11(1) of the Act.
The power under Section 15A of the Act is exercisable
by the appropriate Government and the same cannot be
exercised by the Commissioner who is otherwise empowered to
grant approval under Section 11(1) proviso. In the said view of
the matter, we are of the considered opinion that the power
vested with the Commissioner under proviso to Section 11(1) of
the Act is limited power which is administrative in nature,
hence, he cannot sit in appeal against the proposed award made
by the Collector under Section 11(1) of the Act.
However, we notice a somewhat different view has been
taken by this Court in the case of State of Bihar and Ors. vs.
Prem Kumar Singh & Ors., a judgment rendered in the civil
appeal arising out of S.L.P. No. 7837 of 1993, decided on
30.11.1993 (reported only in 1998 (2) SCC 573). In that case,
this Court held that the Officers authorised by the State
Government by notification under proviso to sub-section (1) of
Section 11 for approval of the award could reduce the
compensation fixed by the Collector. This Court followed the
judgment in the case of Prem Kumar Singh (supra) in a later
case in the case of State of Bihar & Ors. vs. D. N. Singh
(Dead) by LRs. & Ors. [1998 (2) SCC 572] in Civil
Appeal No. 7695 of 1997 decided on 13.11.1997. In
both the above-cited judgments of this Court, we
find the Court has not considered the nature of power exercised
by the Commissioner under proviso to Section 11(1) of the Act
nor has the Court considered the effect of introducing Section
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15A of the Act. However, since the view taken by this Court in
those two judgments is somewhat in conflict with the view we
have expressed in this case, to settle the law in question, we
think it appropriate that this matter should be referred to a
larger Bench. Therefore, the papers in this appeal shall be
placed before Hon’ble the Chief Justice of India for necessary
orders.
Ordered accordingly.